Rhian Taylor Complaint

Case 1:18-cv-05500-NG-ST Document 1 Filed 10/01/18 Page 1 of 28 PageID #: 1
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
RHIAN TAYLOR,
COMPLAINT
Plaintiff,
Index No. 18-cv-5500
-against-
THE CITY OF NEW YORK and JOSEPH BEY, JURY TRIAL DEMANDED
Individually and as a Member of the New York
City Police Department,
Defendants.
Plaintiff RHIAN TAYLOR (“Plaintiff” or “Taylor”), by his attorneys, the LAW
OFFICES OF JOEL B. RUDIN, P.C., respectfully alleges, upon information and belief, as
follows:
NATURE OF ACTION
1. This is a civil action, pursuant to 42 U.S.C. §§ 1983 and 1988, seeking monetary
damages for Plaintiff, RHIAN TAYLOR, arising from his unconstitutionally-obtained conviction
for murder in Queens, New York.
2. Plaintiff was convicted due to the unlawful withholding by police and prosecutors
of evidence favorable to his defense, in violation of his constitutional right to due process and a
fair trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.
3. Plaintiff’s conviction ultimately was reversed, and he was acquitted after a second
trial, but not before he spent more than six years behind bars due to his unlawfully-obtained
conviction.
4. The City of New York is liable because Plaintiff’s constitutional injuries resulted
from the policies, customs and practices of the New York City Police Department (“NYPD”) and
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the Queens County District Attorney’s Office (“QDAO”) that were deliberately indifferent to the
fair trial and due process rights of criminal defendants.
JURISDICTION, VENUE, AND CONDITIONS PRECEDENT
5. This action arises under 42 U.S.C. §§ 1983 and 1988.
6. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343.
7. Venue is proper in this Court pursuant to 28 U.S.C. § 1391.
8. This action has been commenced within the applicable period for each claim.
9. Plaintiff has duly complied with all conditions precedent to the commencement of
this action.
THE PARTIES
10. Plaintiff, RHIAN TAYLOR, is a citizen and resident of the State of New York
and the United States. He resides within the Eastern District of New York.
11. Defendant JOSEPH BEY (“Bey”), was at all relevant times a detective employed
by the NYPD, acting within the scope of his authority and under color of State law. He is named
here in his individual and official capacities.
12. Defendant THE CITY OF NEW YORK (“City”), of which the County of Queens
is a subdivision, is a municipal corporation of the State of New York and is a resident of the
Eastern District of New York. The QDAO and the NYPD are agencies of the City. The District
Attorney (“D.A.”), assistants district attorney (“ADAs”), and detective-investigators (“D.I.s”)
employed by the QDAO, and police officers employed by the NYPD, are agents and employees
of Defendant City, which is legally responsible for torts they commit within the scope of their
employment and/or under color of law.
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ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
The Murder
13. On August 10, 2007, Darion Brown was hanging out with his friends, including
Seprel Turner and Anthony Hilton, drinking alcohol and/or smoking marijuana, in Jamaica,
Queens.
14. An altercation occurred involving Brown and members of a local youth gang
called “I.G.M.” (“I Got Money”), and Brown was visibly nervous.
15. Brown, Turner, Hilton, another friend named Wayne Peacock, and two girls then
drove to the location of a house party they had heard about, at 221st Street and 133rd Avenue, in
Laurelton, Queens.
16. When they arrived, the house party had ended and numerous young people were
still hanging out in the street.
17. Shots rang out and Brown, seated in the driver’s seat of his vehicle, was fatally
wounded. He tried to drive away but lost consciousness and his car collided with a utility pole
and came to a stop.
18. Among the individuals who heard the shots were Rhian Taylor and several of his
friends.
19. They lived in the area and had attended the house party, which was a going-away
celebration for one of their friends who was leaving for college.
20. Plaintiff had been searched, like all the partygoers, upon his arrival at the party,
and he was found to have no weapon.
21. Upon hearing the shots fired, Taylor, his friends, and most of the other individuals
in the area, including the additional occupants of Darion Brown’s vehicle, fled to safety.
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22. Defendant Joseph Bey, a Queens homicide detective, was assigned the case.
23. Police under Bey’s direction gathered forensic evidence from the victim’s car and
the street, including shell casings, fingerprints, DNA, and other items, and they canvassed for
witnesses.
24. Plaintiff emerged as a suspect.
25. Bey picked up for interrogation, and conducted identification procedures with,
Turner and Hilton.
26. Each of them identified Plaintiff as the shooter.
27. Bey then arranged with Plaintiff to report to the 105th Precinct, where, on August
14, 2007, Bey arrested him for the murder.
28. On April 18, 2008, Taylor was indicted by a grand jury sitting in the Supreme
Court, Queens County, for second degree murder and possession of the murder weapon.
The Trial Proceedings
29. Plaintiff’s jury trial commenced on March 11, 2010, in the Supreme Court,
Queens County.
30. The prosecutor was Assistant District Attorney Karen Ross.
31. She had been in the Office since 1998 and was highly experienced in handling
murder and other serious prosecutions.
32. The only evidence that Ms. Ross presented at trial that connected Plaintiff to the
crime consisted of two witnesses—Turner and Hilton—and one piece of forensic evidence: a
cigarette butt recovered by police near the shooting which contained Plaintiff’s DNA.
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33. Since Plaintiff was present for the party, the cigarette butt was of little
significance, and the trial turned on the reliability of Turner’s and Hilton’s identifications and the
credibility of their testimony.
Testimony of Anthony Hilton
34. Hilton was a high school dropout and drug user.
35. Hilton admitted he regularly smoked marijuana for the three years before the
incident, and did not remember whether he smoked that night.
36. He had been convicted, as a youthful offender, for criminal possession of a
weapon and for menacing another person with a gun, and as an adult for disorderly conduct and
criminal possession of stolen property.
37. Hilton claimed that the shooting occurred as his friend Brown, seated in the
driver’s seat of his car, was flirting with and trying to pick up a girl hanging out in the street
named Simone.
38. Hilton testified he knew the girl and they were friends.
39. Hilton testified he got out of the rear seat of the car, near where the girl was
standing, and was admonishing Brown to stop flirting with the girl because she was like a cousin
to Hilton.
40. As Hilton directed Brown to stop speaking with the girl, Brown made fun of him
as the girl’s “kissing cousin” and continued to flirt with her.
41. Hilton testified that Brown’s “kissing cousins” comment caused tension in the
nearby crowd.
42. According to Hilton, he walked to the sidewalk, away from the car, to see if
someone standing there whom he knew could help defuse the situation.
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43. As he was walking to the sidewalk, Hilton testified, he saw a heavyset, dark-
skinned man suddenly fire four or five shots towards Brown from a distance of a few feet.
44. Hilton identified Plaintiff, whom he observed in the courtroom, as the shooter.
45. He claimed the shooter, like Plaintiff, was wearing glasses.
46. Hilton testified that he fled, ran to Turner’s house, and discussed with Turner
what had happened.
47. He testified that, minutes later, he returned to the scene, and saw Brown’s car
crashed into a utility pole down the block from the shooting.
48. Although police were present, Hilton testified, he did not come forward, but
instead went to the hospital to try to visit Brown.
49. Not until one week later, after learning the police were looking for him, did Hilton
come forward to speak with police and identify Plaintiff as the shooter.
50. The prosecution argued that Hilton neither expected, received, nor was promised
any benefit for his cooperation with the authorities in connection with Plaintiff’s prosecution.
51. Plaintiff’s defense counsel, in his cross-examination of Hilton, brought out that
Hilton had never previously mentioned that the shooter wore glasses.
52. He tried to show Hilton had a motive to falsely accuse Plaintiff.
53. He suggested that Hilton might have been the shooter himself.
54. Hilton’s DNA had been found in two specks of blood found by police on the side
of the car where the shooting occurred, and neither Hilton nor the prosecution offered any
explanation for the presence of his blood on the vehicle.
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55. Aside from counsel’s suggestion, the only evidence he could point to of Hilton’s
motive to lie was a single instance, shortly before trial, in which ADA Ross appeared with Hilton
at a proceeding to violate his probation on his gun conviction.
56. ADA Ross asked the probation violation hearing judge not to require any bail so
that Hilton would be at liberty and able to appear to testify at Plaintiff’s trial.
57. ADA Ross represented, in argument to Plaintiff’s trial judge and to the jury at the
end of the trial, that her request had no impact on Hilton and had provided him no benefit.
58. She represented that the judge made an independent decision to fully restore
Hilton to probation, so that her request to release him on no bail was of no consequence and did
not affect his testimony.
59. Plaintiff’s counsel also tried to impeach Hilton’s character by questioning him on
his gun possession conviction.
60. Hilton had been convicted at a trial before a judge of gun possession based upon a
complaint and an indictment alleging that he had admitted to a detective that he had accidentally
shot himself in the foot with it.
61. However, when cross-examined by Plaintiff’s attorney, Hilton testified he had
been falsely convicted.
62. He denied that he had possessed any gun.
63. He denied that he had ever admitted to the police that he had shot himself with it.
Testimony of Seprel Turner
64. The prosecution’s second witness inculpating Plaintiff was Seprel Turner.
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65. Like Hilton, Turner admitted he was a drug user who had been smoking
marijuana two to three times a day for the past three to four years, smoked on the day of the
shooting, and smoked several times on the day before he testified at trial.
66. He acknowledged that, six months after the murder, he was arrested in Queens for
possessing a loaded semi-automatic handgun and, following his release on that charge, was
arrested again, in Manhattan, for possessing a gravity knife and stolen property.
67. Facing up to 15 years in prison for the gun possession, Turner testified, he entered
into a cooperation agreement with the Queens County District Attorney.
68. Under this agreement, in exchange for his trial testimony against Plaintiff, felony
charges would be dismissed and Turner’s sole conviction would be for a misdemeanor, with a
sentence of three years of probation.
69. Turner testified that, just before the shooting, Hilton spoke with the girl Simone.
70. Brown asked if they were “kissing cousins.”
71. Unlike Hilton, who did not testify to any argument involving the shooter, Turner
claimed that a dark-skinned, chubby man walked over to their car and began arguing with Hilton
and Brown.
72. Turner testified Hilton got out of the car, and then the shooting occurred.
73. Like Hilton, Turner described the shooter as wearing glasses.
74. Detective Bey testified that Turner had not mentioned glasses in the description of
the shooter he initially gave to the detective.
75. Turner admitted he fled from the scene after the shooting, met up with Hilton,
then returned, but did not come forward to tell police he had seen the shooting.
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76. He claimed that he was ready to come forward at the request of Brown’s family,
but police got to him first and brought him in for questioning.
77. Turner testified that he identified Plaintiff at a lineup conducted several days after
the shooting, and he identified him again in the courtroom.
78. Plaintiff’s counsel brought out through the testimony of Detective Bey that Turner
identified Plaintiff at the lineup where Plaintiff was the only individual who had previously been
displayed to Turner in a photo array.
79. Plaintiff’s counsel contended that Plaintiff stood out as the most heavyset
individual depicted in the photo array and as the only individual Turner was likely to recognize
as having been present in the area when the shooting occurred.
Summations and Verdict
80. During his summation, defense counsel argued that both Hilton and Turner,
when they testified at trial, had a motive—the assistance they had received from the D.A.’s
Office with respect to their pending cases—to falsely accuse Taylor.
81. Counsel knew about, and referred only, to Turner’s written cooperation agreement
and Hilton’s release after ADA Ross had requested that no bail be set.
82. Defense counsel had no evidence from which to argue Hilton or Turner had any
additional motive to lie, either at the time they initially were interviewed by police and first
identified Plaintiff as the shooter or at the trial.
83. Meanwhile, the prosecutor, ADA Ross, contended that Hilton had received no
benefit at all, and had no reason to lie.
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84. She argued that both witnesses had testified against Plaintiff solely “to get the
right person” in order to obtain justice for their deceased friend and they had “nothing to gain by
pinning this on somebody who didn’t do it.”
85. During deliberations, the jury asked to see the benefits received by both
witnesses.
86. However, the judge gave them only Turner’s written cooperation agreement, but
none of the testimony about benefits Turner and Hilton had received.
87. He erroneously informed the jury this was the only evidence of benefits.
88. On March 29, 2010, after one week of deliberations, Plaintiff was convicted of all
charges against him.
89. Plaintiff was sentenced to serve 20 years to life in prison.
90. Plaintiff was sent upstate to serve his sentence.
91. On October 27, 2015, the New York State Court of Appeals reversed Plaintiff’s
conviction for violation of his right to a fair trial.
92. The Court did so because of the judge’s misleading response to the jury’s inquiry
about benefits which omitted Hilton’s testimony about ADA Ross’s appearance on his behalf at
the probation violation proceeding.
93. On December 21, 2016, as he was awaiting retrial, Plaintiff was released on bail.
94. Previously, ADA Ross contended that his conviction at the first trial demonstrated
the likelihood he would be convicted again and opposed his bail release.
95. On January 31, 2017, following a second trial, Plaintiff was fully acquitted.
96. In all, Plaintiff spent six years and nine months in custody following his trial
conviction.
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FIRST CAUSE OF ACTION
(42 U.S.C. § 1983; Denial of Due Process and a Fair Trial

Under the Fifth, Sixth, and Fourteenth Amendments by
Defendant Bey)
97. Plaintiff repeats and realleges each allegation contained in && 1 through 96 of
this Complaint.
98. At the time of his first trial, Plaintiff had a clearly-established right, pursuant to
the Due Process and Fair Trial Clauses of the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution, Brady v. Maryland, 363 U.S. 83 (1963), Giglio v. United States, 405
U.S. 150 (1972), and other clearly established case law, to timely disclosure of all information
that tended to show his innocence and/or impeached the credibility of the prosecution’s
witnesses against him.
99. While the defense, at trial, knew that Hilton and Turner had not previously
mentioned that the shooter wore glasses, it did not know that both Hilton and Turner had
affirmatively told Defendant Bey, during their initial interviews shortly after the shooting, that
the shooter was not wearing glasses.
100. In addition, they had told Bey the shooter was clean shaven.
101. When Bey arrested Taylor three days after the shooting, he learned that Taylor
regularly wore corrective glasses and observed that he had a mustache and a goatee.
102. Nevertheless, Bey omitted from his paperwork the descriptions he obtained from
Hilton and Turner that the shooter did not wear glasses and was clean shaven.
103. Bey never told ADA Ross that he had received descriptions of the shooter from
Hilton and Turner that differed from Plaintiff’s appearance.
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104. As a result, this information, which suggested Plaintiff’s innocence and directly
impeached Hilton’s and Turner’s trial testimony, was never disclosed to the defense.
105. The information that Bey withheld from the prosecution, and thus from the
defense, was favorable to the defense.
106. The information that Bey withheld was material to the outcome of the trial in that
there is a reasonable probability that it affected the verdict.
107. In withholding the aforementioned information favorable to Plaintiff, Bey acted
deliberately, intentionally, willfully, recklessly and/or with deliberate indifference to Plaintiff’s
constitutional rights or to the effect of such misconduct upon Plaintiff’s constitutional rights.
108. Bey’s actions in withholding the favorable information was a foreseeable,
substantial, and proximate cause of Plaintiff’s conviction.
109. Defendant Bey is therefore liable to Plaintiff, under 42 U.S.C. '§ 1983 and 1988,
for his conviction and imprisonment, all other consequential damages, and his reasonable
attorneys’ fees.
SECOND CAUSE OF ACTION
(42 U.S.C. § 1983/Monell; Claim Against Defendant THE

CITY OF NEW YORK for Actions of the New York City
Police Department)
110. Plaintiff repeats and re-alleges each and every allegation contained in ¶¶ 1
through 106 and 108 of this Complaint.
111. The foregoing violations of Plaintiff’s federal constitutional rights and injuries
were further directly, foreseeably, proximately, and substantially caused by conduct, chargeable
to Defendant City, amounting to deliberate indifference to the constitutional rights of persons,
including Plaintiff, who are investigated, arrested, or prosecuted for alleged criminal activities.
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112. Prior to Plaintiff’s arrest, policymaking officials at the NYPD, with deliberate
indifference to the constitutional rights of individuals suspected or accused of criminal activity,
to the risk of convicting innocent people, and to the right of all criminal suspects and defendants
to due process and a fair trial, implemented plainly inadequate policies, procedures, regulations,
practices, customs, training, supervision, and discipline concerning the continuing duty of police
investigators to preserve and to make timely disclosure to the District Attorney, during criminal
investigations and prosecutions, of all material evidence or information (“Brady material”)
favorable to a person suspected, accused or convicted of criminal conduct, including, but not
limited to, evidence of innocence as well as evidence affecting the credibility of prosecution
witnesses, so that the District Attorney could comply with his constitutional obligation to
disclose such information to the defense under Brady.
113. Specifically, the NYPD provided no minimally adequate training or supervision
to police officers concerning their obligation to make a record of and/or to disclose to the
prosecution information favorable to a criminal suspect or defendant, either because it is
suggestive of innocence or is impeaching of potential witnesses for the prosecution.1
114. As a result, many detectives were unaware they had any obligation to make a
record of or to otherwise inform prosecutors of such information.
115. In addition, the New York City Police Commissioner, as well as his delegates, did
not discipline police officers found to have been responsible for the violation of criminal
suspects’ or defendants’ right to disclosure of Brady material.
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Undersigned counsel for Plaintiff has obtained deposition testimony from present and former
police detectives, including supervisors, during several civil rights lawsuits establishing, prior to
and during the time period of Plaintiff’s arrest and prosecution, that the NYPD provided no
Brady-related training and had no policies requiring disclosure of Brady material.
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116. As a result, detectives understood that there would be no adverse consequence to
them if they withheld such information from prosecutors and the defense.
117. At the same time, the NYPD put substantial pressure on detectives to close cases
by developing probable cause and making arrests.
118. The aforesaid deliberate or de facto policies, procedures, regulations, practices
and/or customs (including the failure to properly instruct, train, supervise and/or discipline
employees with regard thereto) were implemented or tolerated by policymaking officials for the
Defendant THE CITY OF NEW YORK, including but not limited to, the New York City Police
Commissioner, who knew (or should have known):
a) to a moral certainty that such policies, procedures, regulations, practices

and/or customs concern issues that regularly arise in the investigation and
prosecution of criminal cases;
b) that such issues either present police employees with difficult choices
of the sort that instruction, training and/or supervision will make less
difficult or that the need for further instruction, training, supervision and/or
discipline was demonstrated by a history of police employees mishandling
such situations as well as the incentives that police employees have to
make the wrong choice; and
c) that the wrong choice by such employees concerning such issues will
frequently cause the deprivation of the constitutional rights of criminal
suspects or defendants and cause them constitutional injury.
119. The aforementioned policymaking officials had the knowledge and the notice
alleged in the preceding paragraph based upon, among other circumstances:
a) credible allegations, many substantiated by judicial decisions, finding that

NYPD officers had wrongfully withheld material evidence;
b) civil lawsuits, some of which resulted in substantial civil settlements,

credibly alleging that police had withheld material evidence;
c) numerous decisions of the United States Supreme Court, the United States
Court of Appeals for the Second Circuit, the New York Court of Appeals,
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and the New York Appellate Division, discussing the difficult issues that
regularly arise under Brady;
d) judicial decisions directly criticizing the NYPD for failing to train and
supervise officers in their Brady obligations and for failing to adopt
adequate Brady disclosure policies, see Carter v. Harrison, 612 F. Supp.
749 (E.D.N.Y. 1985) (McLaughlin, D.J., adopting the Report and
Recommendation of then Magistrate Shira A. Scheindlin), and putting the
NYPD on notice that the City could be held liable for its failure to
adequately train police officers and investigators regarding their obligations
to disclose evidence that favors criminal defendants under Brady, see
Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992), and Carter v.
Harrison, supra;
e) formal reports of the N.Y.C. Comptroller’s Office and the Bar Association
of the City of New York criticizing the NYPD and the N.Y.C. Law
Department for failing to follow up substantial civil settlements for police
misconduct with disciplinary or other remedial action; and
f) the inherent obviousness of the need to train, supervise and discipline

police officers in such obligations to counteract the pressure on and
incentive of officers to close cases by making arrests that result in
indictment and convictions.
120. Under the principles of municipal liability for federal civil rights violations, the
City’s Police Commissioner (or his authorized delegates), has final responsibility for training,
instructing, supervising, and disciplining police personnel with respect to the investigation and
prosecution of criminal matters, including constitutional requirements governing the
interrogation of witnesses, the initiation of criminal prosecutions, and the disclosure of Brady
material.
121. The Police Commissioner, personally and/or through his authorized delegates, at
all relevant times had final authority, and constitutes a City policymaker for whom the City is
liable, with respect to compliance by NYPD employees with the above-mentioned constitutional
requirements.
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122. During all times material to this Complaint, the Police Commissioner owed a duty
to the public at large and to Plaintiff, which he knowingly and intentionally breached, or to
which he was deliberately indifferent, to implement policies, procedures, customs, practices,
training and discipline sufficient to prevent or deter conduct by his subordinates violating the
aforementioned constitutional rights of criminal suspects or defendants and of other members of
the public.
123. The aforesaid policies, procedures, regulations, practices and/or customs of
Defendant City and the NYPD were collectively and individually a substantial factor in bringing
about the aforesaid violations by Defendant Bey of Plaintiff’s rights under the Constitution and
laws of the United States.
124. Defendant Bey failed to make a record of evidence he knew was favorable to
Plaintiff, and otherwise intentionally failed to disclose such information to the District
Attorney’s Office, either because he was acting willfully and in bad faith to suppress such
information knowing there would be no adverse consequence to him if his misconduct was ever
discovered or because, due to his lack of training, he was unaware he had any obligation to
record and disclose such information.
125. By virtue of the foregoing, Defendant City is liable for having substantially
caused the foregoing violations of Plaintiff’s constitutional rights and his constitutional injuries.
THIRD CAUSE OF ACTION
(Monell/42 U.S.C. § 1983 Claim Against Defendant THE CITY

OF NEW YORK For Actions of the Queens D.A.’s Office)
126. Plaintiff repeats and realleges each allegation contained in ¶¶ 1 through 96 as if
fully set forth herein.
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127. Prior to and during the first trial of Plaintiff, ADA Ross knew that Plaintiff’s
defense lawyer was interested in challenging the reliability and the credibility of the trial
testimony of the prosecution’s two main witnesses, Hilton and Turner, and in trying to show that
Hilton may have been the real killer.
128. Ross knew as well that, in a criminal trial, the defendant is entitled to an acquittal
if, due to evidence of innocence or the impeachment of the prosecution’s witnesses, the jury is
left with a reasonable doubt of guilt.
129. Ross knew about numerous pieces of evidence that undercut the reliability and the
credibility of Hilton and Turner, or which pointed to Hilton as the possible shooter, but failed to
disclose such information to Plaintiff or his attorney.
130. As to Turner, Ross knew but did not disclose that, when Bey first picked him up
and interrogated him, Turner had a criminal history which provided him reason to be in fear of
and to try to ingratiate himself with the police by assisting them in making an arrest.
131. Ross knew but did not disclose that, when police were unable to locate or gain the
cooperation of Hilton, Turner found Hilton and brought him to meet with Det. Bey.
132. While presenting Turner as a fully cooperating witness, Ross did not disclose that,
after initially ingratiating himself with police who had brought him in for questioning, Turner did
not appear in response to a subpoena to testify before the grand jury.
133. Ross did not disclose that, due to Turner’s failure to comply with the subpoena or
cooperate, she obtained an arrest warrant for him.
134. Although the warrant application detailed Turner’s pattern of failure to cooperate,
Ross did not disclose it to the defense.
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135. Knowing that Turner had entered into a formal, written cooperation agreement
under which he would avoid up to 15 years in prison but only if he cooperated with the District
Attorney, Ross did not disclose that Turner violated the agreement by failing to voluntarily
appear at her Office to prepare his trial testimony and she had to apply for and to obtain still
another arrest warrant.
136. Ross discussed with Bey, but failed to disclose to the defense, information she
had received from the NYPD that Turner was a leader of a notorious street gang, known as the
“Snow Gang,” which operated in the same general neighborhood where the shooting occurred
and which was involved in murders, drug dealing and prostitution.
137. As for Hilton, Ross argued at trial that he had received no benefits related to his
testimony and was motivated solely to obtain justice for his deceased friend.
138. However, she knew, but did not disclose, that, at the time he finally met with Bey
and identified Taylor as the shooter, Hilton had an open felony case in Queens County, being
prosecuted by a colleague of ADA Ross, for possession of a stolen automobile.
139. Ross did not disclose her knowledge that, when he testified for her, and against
Plaintiff, at the grand jury, Hilton not only had the open felony case but also had failed to appear
in court at least twice, bench warrants had been issued against him, and he could be prosecuted
for bail jumping.
140. Further, Ross did not disclose that, when Hilton failed to answer a grand jury
subpoena to appear to testify, she obtained a material witness warrant, caused him to be arrested
and brought before a judge, and when he still refused to testify, had him jailed. Only then did he
“agree” to testify.
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141. Ross did not disclose that, after Hilton testified before the grand jury, his felony
case was dismissed by her Office and he was never prosecuted for bail jumping.
142. Ross failed to disclose sworn grand jury and trial testimony by a detective, police
reports, and statements by other prosecutors in her Office, proving that Hilton lied at Plaintiff’s
trial when he denied ever saying he had shot himself in the foot or possessed the gun used in that
shooting.
143. She failed to disclose police documents in her Office’s possession showing that,
when Hilton was arrested by police on January 8, 2008, for the gun possession, the person he
called to assist him was Turner.
144. She failed to disclose that, with nothing in it for him, Hilton refused to cooperate
with the police in the latter’s investigation of Hilton’s own shooting.
145. Ross failed to disclose that, before shooting himself in the foot with his own gun,
Hilton previously had been shot in the foot and was wearing a protective boot.
146. Ross failed to disclose that, in October 2009, Hilton was involved in still a third
shooting.
147. Hilton’s involvement in three shootings, two unknown to Plaintiff’s counsel,
suggested access to guns, possible involvement in gang-related violence, and a violent proclivity
that Plaintiff’s attorney, suspecting that Hilton was the real shooter in Plaintiff’s case, would
have investigated and made use of at trial.
148. On February 25, 2010, shortly before Plaintiff’s trial, Ross appeared at Hilton’s
probation violation hearing on his gun case. Contrary to her false representation at Plaintiff’s
trial denying any role in helping Hilton avoid imprisonment for violating his probation, Ross,
solely because of Hilton’s role as a prosecution witness, spoke with the court and the probation
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department and caused the court to restore Hilton to probation even though he had repeatedly
violated the conditions of his release on probation.
149. Indeed, before restoring Hilton to probation, the court asked Ross if such a result
would be okay with her and she agreed to that disposition.
150. Ross also failed to disclose that, on that same day, she appeared in court with
Hilton on still another case, and assisted him in avoiding a jail sentence for failing to perform
court-ordered community service, causing the judge to resentence him to time served.
151. Ross failed to disclose that, during Plaintiff’s trial, Hilton got in trouble with the
Probation Department for failing to report for supervision and again faced jail, but Ross had an
investigator with her office intercede with the Probation Department to assist him in avoiding
another violation proceeding.
152. Ross failed to disclose that, on March 23, 2010, while Plaintiff’s jury was
deliberating, Ross, having argued Hilton was receiving no benefits in exchange for his testimony,
appeared in court after he was arrested for yet another series of probation violations and
interceded on his behalf.
153. As a result, the judge restored Hilton to probation and released him from custody,
acting against the recommendation of the Department of Probation, which requested that Hilton
be remanded and resentenced.
154. On April 22, 2010, Hilton appeared in court once more on his probation violations
and, owing to ADA Ross’s intervention on Hilton’s behalf, the court resentenced Hilton to time
served and terminated his probation.
155. Prior to Plaintiff’s retrial, and consistent with the policy, custom or practice of her
Office, Ross continued to deliberately conceal exculpatory and impeachment evidence that she
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was required by law to timely disclose and/or to consciously avoid obtaining possession or actual
knowledge of such evidence.
156. The aforementioned conduct of ADA Ross in failing to disclose information
favorable to the defense prior to or during Plaintiff’s trial, and in making false and misleading
arguments during the trial to the court and the jury, violated Plaintiff’s constitutional rights to
due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments to the United
States Constitution.
157. The foregoing violations of Plaintiff’s constitutional rights, and his resultant
injuries, were directly, foreseeably, proximately, and substantially caused by conduct, chargeable
to Defendant THE CITY OF NEW YORK, amounting to deliberate indifference to the
constitutional rights of persons, including Plaintiff, subject to prosecution by the Queens County
District Attorney’s Office, namely:
a. The institution and implementation by the District Attorney of plainly
inadequate or unlawful policies, procedures, regulations, practices and/or
customs concerning:
i. The duty not to use false, misleading or unreliable evidence,
testimony, statements or argument during criminal proceedings;
ii. The obligation to correct false, inaccurate, incomplete or
misleading evidence, testimony, statements and argument,
whenever such misconduct is discovered to have occurred; and
iii. The continuing obligation to timely and fully disclose material
favorable to the defense as set forth in Brady v. Maryland, 373
21
U.S. 83 (1963); Giglio v. United States, 450 U.S. 150 (1972), and
their progeny; and
b. The District Attorney’s deliberate indifference to the need, and his failure,
to adequately instruct, train, supervise, and/or discipline his employees
with respect to such matters.
158. The aforesaid deliberate or de facto policies, procedures, regulations, practices
and/or customs, including the failure to properly instruct, train, supervise and/or discipline
employees with regard thereto, were implemented or tolerated by policymaking officials for
Defendant City, including, but not limited to, the District Attorney of Queens County and his
delegates, who knew:
a. To a moral certainty that such policies, procedures, regulations, practices
and/or customs concern issues that regularly arise in the investigation and
prosecution of criminal cases;
b. That such issues present employees with difficult choices of the sort that
instruction, training, supervision, and discipline will make less difficult or
will incentivize correct choices;
c. That the wrong choice by municipal employees concerning such issues
will frequently cause the deprivation of the constitutional rights of an
accused and cause him constitutional injury; and
d. That employees of the QDAO had a history of making wrong choices in
such matters.
159. The aforementioned policymaking officials had the knowledge and the notice
alleged in the preceding paragraph, based upon:
22
a. Numerous credible allegations, many substantiated by judicial decisions
(some of which are listed in Exhibit A hereto and incorporated by
reference) that Queens County ADAs had:
i. Participated in the manufacturing of false testimony or evidence,
including identification evidence;
ii. Presented or failed to correct false or misleading testimony and
argument;
iii. Failed to disclose information favorable to the defense that was
required to be disclosed by the Constitutions and the laws of the
United States and of the State of New York;
iv. Made arguments at trial that were so false, misleading, or
otherwise improper that they deprived the defendant of due process
and a fair trial; and
b. The inherent obviousness of the need to train, supervise and discipline
ADAs in their aforementioned constitutional obligations to counteract the
pressure that the Queens County District Attorney applied to prosecutors
to obtain convictions.
160. At the time of Plaintiff’s trial, the Queens County District Attorney’s indifference
to the aforementioned types of prosecutorial misconduct was evidenced by his failure to conduct
internal disciplinary investigations, or to discipline, the prosecutors who were known to engage
in it, including the prosecutors responsible for the misconduct found in the judicial decisions
listed in Exhibit A, or to refer such individuals for possible discipline by the Appellate Division’s
Disciplinary or Grievance Committees.
23
161. Instead of disciplining such prosecutors, the District Attorney’s policy, custom or
practice was to give them raises, promotions and commendations, based in part on their record of
winning at trial and extracting guilty pleas even in weak cases.
162. Thus, prosecutors were incentivized to violate the constitutional rights of criminal
defendants, since they knew they were likely to be rewarded for winning, but would suffer no
negative consequence in the unlikely event their misconduct was exposed.
163. Further encouraging prosecutors to win at any cost was their knowledge that the
QDAO had no employee handbook or other published procedure for disciplining prosecutors
who violated rules of behavior for criminal prosecutions.
164. In addition to turning a blind eye to known violations of Brady and other fair trial
obligations, the Queens County District Attorney followed a policy of encouraging prosecutors
to consciously avoid obtaining personal possession or actual knowledge of Brady material,
including evidence of innocence and impeachment material, so that they could avoid disclosing it
and, if later discovered, could defend themselves against potential disciplinary sanctions by
denying actual knowledge of such material.
165. The Office itself termed this its “Chinese Wall” policy.
166. It continued to pursue this policy, even after it was condemned by the New York
State courts in the early 1990s, in flagrant disregard of law.
167. Further, under District Attorney Brown, the Office followed a practice of using
material witness warrants to arrest and detain prospective witnesses, sometimes in violation of
the terms of the warrants, until they agreed to give testimony favoring the prosecution, and then
concealed from the defense the existence and the contents of the warrant applications and orders
24
as well as the fact that the witnesses had been uncooperative or recalcitrant and were testifying
under compulsion.
168. Evidence of the Queens County District Attorney’s deliberate indifference to
prosecutorial misconduct violative of a criminal defendant’s rights, including false or misleading
argument to the jury and Brady violations, was uncovered during the civil rights litigation in Su
v. City of New York, 06 Civ. 687 (EDNY) (RJD)(CLP), a case involving the wrongful conviction
of a young man due to the prosecution’s knowing use of false evidence and argument and Brady
violations.
169. During that litigation, discovery of personnel records, together with deposition
testimony, showed that in dozens of cases where courts had found serious prosecutorial
misconduct, including the use of and failure to correct false or misleading testimony and Brady
violations, the prosecutors were never disciplined, the Office had no formal or meaningful
disciplinary policy, procedure, training, or practice, and the Office trained prosecutors in the
aforementioned “Chinese Wall” policy to prevent disclosure of impeachment evidence under
Brady.1
170. As established by the testimony of executives at the Queens D.A.’s Office,
District Attorney Richard Brown made the decision in each instance where misconduct was
alleged or found whether to initiate an investigation of the ADA involved or to impose
discipline.
1
The discovery obtained in that lawsuit is summarized in Joel B. Rudin, The Supreme Court Assumes Errant
Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies That Prove That Assumption
Wrong, 80 Fordham L. Rev. 537, 559-566 (2011), a copy of which is attached as Exhibit B and is incorporated
herein by reference.
25
171. However, the testimony and evidence further showed and shows that, with
deliberate indifference to the violations of criminal defendants’ constitutional rights, Mr. Brown
rarely if ever imposed discipline or authorized disciplinary inquiries.
172. The Su case settled on or about October 15, 2008, for $3.5 million.
173. Notwithstanding that settlement, the District Attorney’s deliberately indifferent
policies, customs or practices continued through and including the prosecution of Plaintiff and
until the present.
174. The District Attorney’s policy, custom and/or practice of approval or ratification
of, toleration or acquiescence in, or deliberate indifference to, violations of his Office’s
constitutional obligations foreseeably encouraged such violations to continue and was a
substantial cause of ADA Ross’s violations of Plaintiff’s constitutional rights before and during
his trial, his wrongful conviction, and the continuation thereafter of his wrongful imprisonment
and prosecution.
175. The aforesaid policies, procedures, regulations, practices and/or customs of
Defendant City were collectively and individually a substantial factor in bringing about the
aforesaid violations of Plaintiff’s rights under the Constitution and Laws of the United States and
in causing his damages.
176. Under the principles of municipal liability for federal civil rights violations, the
District Attorney of Queens County (or his authorized delegates) has final managerial
responsibility for training, instructing, supervising and disciplining attorneys and other
employees in his office regarding their conduct in the prosecution of criminal matters, including,
but not limited to, their obligations not to coerce witnesses or manufacture false or unreliable
“evidence,” to make timely disclosure of exculpatory or impeachment evidence to the defense,
26
and to refrain from offering, and to correct, false or misleading evidence, testimony, and
argument during pretrial and trial proceedings.
177. The Queens County District Attorney, personally and/or through his authorized
delegates, at all relevant times had final authority to promulgate and implement administrative
and managerial policies and procedures, including policies and procedures as to personnel hiring,
training, supervision and discipline, with respect to his Office’s performance of its duties.
178. The District Attorney of Queens County, at all relevant times, was and is an
elected officer of Queens County, one of the constituent counties of Defendant City; the Office
was and is funded out of the City’s budget; and the Office was and is a New York City agency.
179. The District Attorney was and is designated a “local officer,” rather than a “state
officer,” under the New York Public Officers Law (§ 2); New York has provided by statute
(N.Y. County Law §§ 53, 941) that Defendant City’s constituent counties (including Queens
County), and hence Defendant City itself, has liability for torts committed by County officers
and employees, such as the District Attorney and his assistants, and THE CITY OF NEW YORK
represents such officers and employees in judicial proceedings and indemnifies them because
they are City officials.
180. The District Attorney of Queens County personally and/or through his authorized
delegates, at all relevant times had final authority, and constituted a City policymaker for whom
the City is liable, with respect to the above-mentioned areas.
181. During all times material to this Complaint, the City, through its policymakers,
owed a duty to the public at large and to Plaintiff, which such policymakers knowingly and
intentionally breached, or to which they were deliberately indifferent, to implement policies,
procedures, customs and practices sufficient to prevent, deter, and avoid conduct by their
27
subordinates violating the aforementioned constitutional rights of criminal suspects or defendants
and of other members of the public.
182. By virtue of the foregoing, Defendant City is liable for having substantially
caused the foregoing violations of Plaintiff’s constitutional rights and his resultant injuries.
DAMAGES DEMAND
WHEREFORE, Plaintiff demands judgment against the Defendants as follows:
a. For compensatory damages of not less than $15 million;
b. For punitive damages of not less than $7.5 million;
c. For reasonable attorneys’ fees, together with costs and disbursements,
pursuant to 42 U.S.C. § 1988 and to the inherent powers of this Court;
d. For pre-judgment interest as allowed by law; and
e. For such other and further relief as this Court may deem just and proper.
LAW OFFICES OF JOEL B. RUDIN, P.C.
/s/
By: JOEL B. RUDIN
HARAN TAE
Law Offices of Joel B. Rudin, P.C.
152 West 57th Street, 8th Floor
New York, New York 10019
(212) 752-7600
Attorneys for the plaintiff
Dated: New York, New York

October 1, 2018
28
Case 1:18-cv-05500-NG-ST Document 1-1 Filed 10/01/18 Page 1 of 2 PageID #: 29
JS 44 (Rev. 11/15) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

Rhian Taylor The City of New York and Joseph Bey, Individually and as a Member
of the New York City Police Department
(b) County of Residence of First Listed Plaintiff Queens County of Residence of First Listed Defendant New York
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Law Offices of Joel B. Rudin, P.C. Zachary W. Carter, Corporation Counsel for the City of New York
152 West 57th Street, 8th Floor, New York, NY 10019 100 Church Street
(212) 752-7600 New York, NY 10007
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
u 1 U.S. Government u 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated or Principal Place u 4 u 4
of Business In This State
u 2 U.S. Government u 4 Diversity Citizen of Another State u 2 u 2 Incorporated and Principal Place u 5 u 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a u 3 u 3 Foreign Nation u 6 u 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
u 110 Insurance PERSONAL INJURY PERSONAL INJURY u 625 Drug Related Seizure u 422 Appeal 28 USC 158 u 375 False Claims Act
u 120 Marine u 310 Airplane u 365 Personal Injury - of Property 21 USC 881 u 423 Withdrawal u 376 Qui Tam (31 USC
u 130 Miller Act u 315 Airplane Product Product Liability u 690 Other 28 USC 157 3729(a))
u 140 Negotiable Instrument Liability u 367 Health Care/ u 400 State Reapportionment
u 150 Recovery of Overpayment u 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS u 410 Antitrust
& Enforcement of Judgment Slander Personal Injury u 820 Copyrights u 430 Banks and Banking
u 151 Medicare Act u 330 Federal Employers’ Product Liability u 830 Patent u 450 Commerce
u 152 Recovery of Defaulted Liability u 368 Asbestos Personal u 840 Trademark u 460 Deportation
Student Loans u 340 Marine Injury Product u 470 Racketeer Influenced and
(Excludes Veterans) u 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations
u 153 Recovery of Overpayment Liability PERSONAL PROPERTY u 710 Fair Labor Standards u 861 HIA (1395ff) u 480 Consumer Credit
of Veteran’s Benefits u 350 Motor Vehicle u 370 Other Fraud Act u 862 Black Lung (923) u 490 Cable/Sat TV
u 160 Stockholders’ Suits u 355 Motor Vehicle u 371 Truth in Lending u 720 Labor/Management u 863 DIWC/DIWW (405(g)) u 850 Securities/Commodities/
u 190 Other Contract Product Liability u 380 Other Personal Relations u 864 SSID Title XVI Exchange
u 195 Contract Product Liability u 360 Other Personal Property Damage u 740 Railway Labor Act u 865 RSI (405(g)) u 890 Other Statutory Actions
u 196 Franchise Injury u 385 Property Damage u 751 Family and Medical u 891 Agricultural Acts
u 362 Personal Injury - Product Liability Leave Act u 893 Environmental Matters
Medical Malpractice u 790 Other Labor Litigation u 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS u 791 Employee Retirement FEDERAL TAX SUITS Act
u 210 Land Condemnation u 440 Other Civil Rights Habeas Corpus: Income Security Act u 870 Taxes (U.S. Plaintiff u 896 Arbitration
u 220 Foreclosure u 441 Voting u 463 Alien Detainee or Defendant) u 899 Administrative Procedure
u 230 Rent Lease & Ejectment u 442 Employment u 510 Motions to Vacate u 871 IRS—Third Party Act/Review or Appeal of
u 240 Torts to Land u 443 Housing/ Sentence 26 USC 7609 Agency Decision
u 245 Tort Product Liability Accommodations u 530 General u 950 Constitutionality of
u 290 All Other Real Property u 445 Amer. w/Disabilities - u 535 Death Penalty IMMIGRATION State Statutes
Employment Other: u 462 Naturalization Application
u 446 Amer. w/Disabilities - u 540 Mandamus & Other u 465 Other Immigration
Other u 550 Civil Rights Actions
u 448 Education u 555 Prison Condition
u 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
u 1 Original u 2 Removed from u 3 Remanded from u 4 Reinstated or u 5 Transferred from u 6 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. § 1983
VI. CAUSE OF ACTION Brief description of cause:
Civil rights claims -- Denial of due process and a fair trial; Monell
VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. 22,500,000.00 JURY DEMAND: u Yes u No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
10/01/2018 /s/ Joel B. Rudin
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

CERTIFICATION
Case 1:18-cv-05500-NG-ST OF ARBITRATION
Document ELIGIBILITY
1-1 Filed 10/01/18 Page 2 of 2 PageID #: 30
Local Arbitration Rule 83.10 provides that with certain exceptions, actions seeking money damages only in an amount not in excess of $150,000,
exclusive of interest and costs, are eligible for compulsory arbitration. The amount of damages is presumed to be below the threshold amount unless a
certification to the contrary is filed.
&DVHLV(OLJLEOHIRU$UELWUDWLRQ
I, __________________________________________,
Joel B. Rudin counsel for____________________________,
Rhian Taylor do hereby certify that the above captioned civil action is ineligible for
compulsory arbitration for the following reason(s):
✔ monetary damages sought are in excess of $150,000, exclusive of interest and costs,
the complaint seeks injunctive relief,
the matter is otherwise ineligible for the following reason
DISCLOSURE STATEMENT - FEDERAL RULES CIVIL PROCEDURE 7.1

Identify any parent corporation and any publicly held corporation that owns 10% or more or its stocks:
N/A
RELATED CASE STATEMENT (Section VIII on the Front of this Form)

Please list all cases that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this form. Rule 50.3.1 (a) provides that “A civil case is “related”
to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues or because the cases arise from the same transactions or events, a
substantial saving of judicial resources is likely to result from assigning both cases to the same judge and magistrate judge.” Rule 50.3.1 (b) provides that “ A civil case shall not be
deemed “related” to another civil case merely because the civil case: (A) involves identical legal issues, or (B) involves the same parties.” Rule 50.3.1 (c) further provides that
“Presumptively, and subject to the power of a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be “related” unless both cases are still
pending before the court.”
NY-E DIVISION OF BUSINESS RULE 50.1(d)(2)
1.) Is the civil action being filed in the Eastern District removed from a New York State Court located in Nassau or Suffolk
County? Yes ✔ No
2.) If you answered “no” above:

a) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in Nassau or Suffolk
County? Yes ✔ No
b) Did the events or omissions giving rise to the claim or claims, or a substantial part thereof, occur in the Eastern
District? ✔ Yes No
c) If this is a Fair Debt Collection Practice Act case, specify the County in which the offending communication was
received:______________________________.
If your answer to question 2 (b) is “No,” does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau or
Suffolk County, or, in an interpleader action, does the claimant (or a majority of the claimants, if there is more than one) reside in Nassau or
:FT/P
Suffolk County?___________________________________
(Note: A corporation shall be considered a resident of the County in which it has the most significant contacts).
BAR ADMISSION
I am currently admitted in the Eastern District of New York and currently a member in good standing of the bar of this court.
✔ Yes No
Are you currently the subject of any disciplinary action (s) in this or any other state or federal court?
Yes (If yes, please explain ✔ No
I certify the accuracy of all information provided above.
V-RHO%5XGLQ
Signature: ____________________________________________________
/DVW0RGLILHG
AO 440 (Rev. 06/12) Summons in a Civil Action

for the
Eastern District
__________ of of
District New York
__________
Rhian Taylor )
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
The City of New York and Joseph Bey, Individually )
and as a Member of the New York City Police )
Department )
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) The City of New York

c/o Zachary W. Carter, Corporation Counsel
New York City Law Department
100 Church Street
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
Joel B. Rudin, Esq.
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
%06(-"4$1"-.&3
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 06/12) Summons in a Civil Action

for the
Eastern District
__________ of of
District New York
__________
Rhian Taylor )
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
The City of New York and Joseph Bey, Individually )
and as a Member of the New York City Police )
Department )
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Detective Joseph Bey

68-40 Austin Street, 2nd Floor
Forest Hills, New York 11375
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
Joel B. Rudin, Esq.
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
%06(-"4$1"-.&3
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
EXHIBIT A
1. People v. Roopchand, 107 A.D.2d 35 (2d Dep’t 1985): Affirming conviction but
unequivocally condemning trial prosecutor for making inflammatory summation
argument intended to elicit sympathy for the complainant and arouse animosity
against the defendant, and warning the prosecutor that future infractions may lead
to disciplinary action, and that the court expected the Queens County D.A. to issue
an appropriate internal admonition.
2. People v. Jones, 108 A.D.2d 824 (2d Dep’t 1985): Reversing robbery conviction
where, among other things, the prosecutor improperly elicited that the defendant
had previously hit a woman with a bat, and then suggested on summation that the
jury could never believe a man who had done this.
3. People v. Valdivia, 108 A.D.2d 885 (2d Dep’t 1985): Affirming conviction but
“strongly condemn[ing]” prosecutor for improperly cross-examining alibi witness
regarding his taking an affirmation instead of an oath and revisiting the matter in
summation, and for characterizing defendant’s testimony as “an out and out series
of lies.”
4. People v. Hooks, 110 A.D.2d 909 (2d Dep’t 1985): Reversing conviction for rape,
robbery, and burglary where prosecutor cross-examined defendant on his prior
conviction in such a way as to improperly create the inference that because
defendant had previously committed a burglary, he had also committed the instant
offenses.
5. People v. Brown, 111 A.D.2d 248 (2d Dep’t 1985): In reversing conviction on
other grounds, reprimanding prosecutor for making comments during summation
that characterized defendant as lying while characterizing the prosecution as “on
the side of truth,” and implying that the jury should convict even if not convinced
beyond a reasonable doubt, so long as it believed its verdict represented the
“truth.”
6. People v. Torres, 111 A.D.2d 885 (2d Dep’t 1985): Reversing, in part, because
prosecutor repeatedly cross-examined alibi witness on why the witness did not
contact the police, improperly implying witness was obligated to come forward,
and because prosecutor consistently implied during summation that defense had
concocted alibi, and improperly suggested that the jury would be subject to
derision if they acquitted defendant.
7. People v. Williams, 112 A.D.2d 177 (2d Dep’t 1985): In reversing, reprimanding
trial prosecutor for intimating to jury during summation that they were required to
find that the complainant had lied in order to acquit defendant, and improperly
bolstering by injecting his integrity and the integrity of his office into the case.
1
8. People v. Hines, 112 A.D.2d 316 (2d Dep’t 1985): Reversing in part because the
prosecutor, during his summation, made inappropriate comments about the
defendant, and emphasized the other “police procedures” which led to the
selection of defendant as a suspect, clearly inviting the jury to infer that there was
other evidence against defendant, of which they had not been told.
9. People v. La Rosa, 112 A.D.2d 954 (2d Dep’t 1985): Reversing conviction where
the prosecutor, in summation, improperly vouched for his own case, denigrated the
defense, misrepresented material facts, and misquoted testimony.
10. People v. Reyes, 119 A.D.2d 596 (2d Dep’t 1986): Affirming conviction but
noting that prosecutor improperly told jury that “contrary to what the Defense
Counsel would have you believe, a trial is not a search for reasonable doubt.
Plainly simply a trial is a search for truth. Not supposed to be sitting here trying to
pick reasonable doubt out from everything that goes on [sic].”
11. People v. Mercado, 120 A.D.2d 619, 502 N.Y.S.2d 87 (2d Dep’t 1986): Ordering
new trial where, among other errors, court allowed prosecutor to admit photograph
of defendant posing with handguns for no other purpose than to arouse jurors’
emotions, and inflammatory nature of photographs was made worse when
prosecutor, in summation, commented on jury having seen defendant in his “Al
Capone get-up.”
12. People v. Pascullo, 120 A.D.2d 687 (2d Dep’t 1986): Reversing conviction in part
because prosecutor suggested improper inferences of racial motivation and
informed the jury that an acquittal would be a condonation of racism.
13. People v. Beaman, 122 A.D.2d 848 (2d Dep’t 1986): Reversing conviction
because prosecutor called witness to stand knowing he would refuse to testify, and
improperly commenting on this refusal during summation, thereby inviting jury to
speculate that witness had been threatened and refused to testify out of fear.
14. People v. Ciervo, 123 A.D.2d 393 (2d Dep’t 1986): Reversing conviction in part
because of prosecutor’s improper summation comments implying that a conviction
was warranted based solely upon the defendant’s character, and repeated
characterizations of the defense case as a “con.”
15. People v. Roudabush, 123 A.D.2d 649 (2d Dep’t 1986): Affirming conviction but
“condemn[ing]” prosecutor’s misconduct during summation, and noting that court
made its position on this misconduct “quite clear” during oral argument.
16. People v. Anderson, 123 A.D.2d 770 (2d Dep’t 1986): Reversing conviction
because prosecutor re-called witness (who had originally been a codefendant in
the case) to the stand, even though prosecutor knew the witness was going to
2
invoke his privilege against self-incrimination, and improperly commented several

times on this invocation of privilege during summation, thus inviting jury to draw
an unwarranted inference against the defendant.
17. People v. Brown, 125 A.D.2d 321, 510 N.Y.S.2d 135 (2d Dep’t 1986): Reversing
conviction because prosecutor improperly bolstered victim’s testimony by
implying that the defendant’s stipulation that the victim had been raped and
sodomized was a stipulation that the victim had told the truth, and by telling the
jury something was “terribly wrong” with them if they did not believe the victim.
18. People v. Montalvo, 125 A.D.2d 338 (2d Dep’t 1986): Reversing conviction where
prosecutor, in his summation, improperly commented upon the defendant’s failure
to testify and to call witnesses on his own behalf.
19. People v. Napoli, 126 A.D.2d 674 (2d Dep’t 1987): Affirming conviction but
noting that prosecutor “went beyond the four corners of the evidence” in
summation.
20. People v. Faison, 126 A.D.2d 739 (2d Dep’t 1987): Ordering new trial where
prosecutor improperly cross-examined accused (1) on his failure to disclose alibi
to police after being given Miranda warnings, and (2) on his failure to produce
records indicating that he was at work at time of robbery, which suggested that
defendant bore burden of proving alibi defense.
21. People v. Memminger, 126 A.D.2d 752 (2d Dep’t 1987): Ordering new trial on
various grounds and “adominish[ing]” prosecutor “to remain within the bounds of
fair comment during summation and to refrain from inappropriate and
inflammatory remarks.”
22. People v. Perez, 127 A.D.2d 707 (2d Dep’t 1987): Ordering new trial where,
among other things, prosecutor improperly implied on cross-examination of
accused that he was involved in previous criminal activity.
23. People v. Simms, 130 A.D.2d 525 (2d Dep’t 1987): Ordering new trial because of
“numerous instances of prosecutorial misconduct which occurred throughout the
course of the trial,” including prosecutor’s (1) eliciting of testimony that had been
suppressed, (2) referring to that same evidence during summation, (3) repeatedly
referring to facts not in evidence, (4) calling defendant’s summation a “fairy tale,”
and (5) vouching for witnesses’ credibility.
24. People v. Scoon, 130 A.D.2d 597 (2d Dep’t 1987): Ordering new trial where
prosecutor improperly (1) argued in summation that witness was not involved in
crimes of dishonesty when he knew that the witness had a youthful-offender
adjudication for grand larceny, and (2) repeatedly commented on matters not in
3
evidence during summation.
25. People v. Torriente, 131 A.D.2d 793 (2d Dep’t 1987): Ordering new trial where
prosecutor improperly (1) cross-examined shooting victim about drug use, (2)
cross-examined defendant on whether he had entered country illegally, (3) called
police officer to introduce irrelevant testimony about defendant’s place of
residence, and (4) made prejudicial statements in summation about defense
counsel’s summation and witnesses’ testimony.
26. People v. Romain, 137 A.D.2d 848 (2d Dep’t 1988): Ordering new trial in part
based on prosecutor’s “gross distortion” in summation of defendant’s testimony,
implying that he had admitted guilt when in fact he had not.
27. People v. Chin, 138 A.D.2d 389 (2d Dep’t 1988): Ordering new trial where
prosecutor improperly made unwarranted inferences in summation that defendant
accused of rape against young girl planned to commit similar offenses with one of
his character witnesses.
28. People v. Dunlap, 138 A.D.2d 393 (2d Dep’t 1988): Reversing conviction based
on prosecutorial misconduct even though proof of defendants’ guilt was
overwhelming, where prosecutor in summation diverted jury’s attention from
witnesses’ inconsistencies with elaborate depiction of defendants as sharks
hunting prey. See also People v. Williams, 162 A.D.2d 488 (2d Dep’t 1990)
(reversing codefendant’s conviction on same ground).
29. People v. Stewart, 153 A.D.2d 706 (2d Dep’t 1989): Vacating conviction where
the “trial was marked by the prosecutor’s efforts, even over sustained objections,
to characterize the defendant as an individual predisposed to commit the crime
charged.”
30. People v. Langford, 153 A.D.2d 908 (2d Dep’t 1989): Ordering new trial where
prosecutor suggested, with no evidence, that defendant’s alibi witness used drugs
and was involved in charged robbery, and made several improper remarks in
summation, including denigrating defense counsel and defense witnesses, and
suggesting to the jury that, in order to acquit, they would have to find that a
witness had lied.
31. People v. Durham, 154 A.D.2d 615 (2d Dep’t 1989): Ordering new trial in part
based on prosecutor’s misconduct in summation, which included vouching for
prosecution witnesses and referring pejoratively to defendant.
32. People v. Gomez, 156 A.D.2d 462 (2d Dep’t 1989): New trial ordered where
prosecutor (1) defied court’s order limiting cross-examination of witness on
pending criminal case, prompting court to accuse prosecutor of bad faith, (2)
4
cross-examined witness on his supposed communications with defendant, even

though he knew the two were incarcerated and not free to converse, prompting
court again to accuse prosecutor of bad faith, and (3) in summation, attempted to
inflame the jury, vouched for witnesses’ credibility, denigrated the defense, and
shifted the burden of proof.
33. People v. Pinkas, 156 A.D.2d 485 (2d Dep’t 1989): Ordering new trial where
court ordered counsel not to commingle discrete allegations, but prosecutor
“repeatedly sought to join the two incidents during her summation in spite of the
direction by the Trial Judge to desist.”
34. People v. Rivera, 170 A.D.2d 544 (2d Dep’t 1991): Reversing rape conviction
because the prosecutor failed to disclose police reports that were “in direct
conflict” with the complainant’s rape allegation.
35. People v. Gaskins, 171 A.D.2d 272 (2d Dep’t 1991): Reversing conviction where
the prosecutor failed to disclose the videotape of an interview of the alleged child
victim.
36. People v. Stevens, 174 A.D.2d 640 (2d Dep’t 1991): Reversing conviction in part
based on prosecutor’s statement in summation that “if this defendant wasn’t
charged with sodomy . . . he should have been.”
37. People v. Delace, 174 A.D.2d 688 (2d Dep’t 1991): Reversing robbery conviction
where the prosecutor failed to disclose witness statements.
38. People v. Gunther, 175 A.D.2d 262 (2d Dep’t 1991): Reversing conviction where
prosecutor improperly attempted to show defendant’s propensity to commit the
charged crime of dealing cocaine by extensively cross-examining him on past
convictions for dealing marijuana.
39. People v. Wilkens, 177 A.D.2d 678 (2d Dep’t 1991): Reversing convictions where,
despite court order that defendant’s use of aliases could be used only for
identification purposes, prosecutor cross-examined defendant on the same topic
for impeachment purposes and then argued on summation that defendant was not
to be believed because he “hides behind three names.”
40. People v. Parker, 178 A.D.2d 665 (2d Dep’t 1991): Ordering new trial in part
based on prosecutor’s misconduct in summation, including improperly suggesting
that defendant’s daughter’s unfazed demeanor on witness stand indicated that
defendant had exposed her to drug dealing; trying to mislead the jury into finding
defendant guilty by association; and announcing in open court that defendant’s
daughter was wearing T-shirt that court had refused to admit in evidence.
41. People v. Baba-Ali, 179 A.D.2d 725 (2d Dep’t 1992): Reversing a rape conviction
5
involving a four-year-old child where, despite a court order, the prosecutor failed
until the eve of trial to disclose medical records finding no signs of sexual abuse.
42. People v. Mack, 180 A.D.2d 824 (2d Dep’t 1992): Reversing conviction where
prosecutor failed to turn over notes that could have been used to impeach witness.
43. People v. Figueroa, 181 A.D.2d 690 (2d Dep’t 1992): Ordering new trial where
prosecutor’s summation “went well beyond the bounds of fair advocacy” by
calling defendant’s alibi witness untruthful, by suggesting that defendant was
selling drugs on the night of his arrest for a crime he was alleged to have
committed on another day, and by suggesting that defendant’s alibi was concocted
after the witness met with defense counsel.
44. People v. Clausell, 182 A.D.2d 132 (2d Dep’t 1992): Reversing a narcotics
conviction where the prosecutor repeatedly denied the existence of a “buy report,”
which turned out to include a description of the buyer wholly at odds with the
description the arresting officer had said he received and matched to the
defendant.
45. People v. James, 184 A.D.2d 582 (2d Dep’t 1992): Reversing conviction where
prosecutor represented that People would not introduce unfairly prejudicial
evidence of defendant’s prior possession of drugs but then cross-examined police
officer extensively on that very evidence and emphasized it in summation.
46. People v. Andre, 185 A.D.2d 276 (2d Dep’t 1992): Reversing conviction where,
among other things, prosecutor in summation improperly called People’s key
witness a “brave young girl” and asked jury not “to let her down.”
47. People v. Campbell, 186 A.D.2d 212, 587 N.Y.S.2d 751 (2d Dep’t 1992):
Reversing a robbery conviction because the prosecutor withheld hospital records
which contained statements of the complainant contradicting her trial testimony.
48. People v. Nieves, 186 A.D.2d 276 (2d Dep’t 1992): Reversing conviction where
prosecutor cross-examined accused on psychiatric history and then commented on
the matter in summation even though there was no relevance whatsoever to the
defendant’s psychiatric history or condition.
49. People v. Odle, 187 A.D.2d 536 (2d Dep’t 1992): New trial ordered where
prosecutor repeatedly elicited evidence of uncharged crimes against accused in
order to show his criminal propensity and bad character, attempted to paint him as
guilty by association, and committed summation misconduct.
50. People v. Banch, 80 N.Y.2d 610 (1992): Reversing manslaughter conviction

where the prosecutor “mistakenly” gave the defense the wrong police memo book,
withheld prior affidavits of a People’s witness, and falsely represented that a
6
report by another People’s witness contained no information required to be

disclosed.
51. People v. Robinson, 191 A.D.2d 595 (2d Dep’t 1993): Ordering new trial where
prosecutor “engaged in a series of improper remarks and tactics,” including
eliciting testimony about defendant’s postarrest silence and stressing the point in
both his opening and summation; eliciting improper expert testimony and
mischaracterizing the issue in summation; and, also in summation, referring to
defense counsel’s summation as a “con job,” vouching for the complainant’s
truthfulness, and “derisive[ly]” commenting on the presumption of innocence and
defendant’s right to remain silence.
52. People v. Hill, 193 A.D.2d 619 (2d Dep’t 1993): Ordering new trial where
prosecutor cross-examined defendant in a manner intended to improperly to show
defendant’s criminal propensity and then focused on this line of argument in
summation.
53. People v. Davis, 196 A.D.2d 597 (2d Dep’t 1993): Reversing a rape and robbery
conviction where the prosecutor had refused to disclose the basis for the People’s
expert’s conclusion that defendant’s DNA matched that found on the victim.
54. People v. Gaines, 199 A.D.2d 335 (2d Dep’t 1993): Reversing manslaughter
conviction where the District Attorney’s Office employed the same scheme
condemned in Steadman, i.e., withholding a cooperation agreement made between
the trial assistants’ superior and the principal prosecution witness’s attorney.
55. People v. Torres, 199 A.D.2d 442 (2d Dep’t 1993): Ordering new trial based in
part on prosecutor’s persisting in lines of cross-examination over sustained
objections, including questioning a defense witness excessively about his drug use,
questioning defendant about irrelevant matter of whether he thought drugs were a
problem in schools, and accusing defendant of tailoring his testimony after hearing
other witnesses testify.
56. People v. Steadman/Blair, 82 N.Y.2d 1 (1993): Reversing a defendant’s

manslaughter conviction where the District Attorney’s Office made a “determined
effort” to avoid its obligations to disclose exculpatory evidence and to correct false
testimony, by employing a “scheme” under which a supervisor in the Office would
make a cooperation agreement with a witness’s attorney, but not reveal the
agreement to the prosecutors handling the defendant’s case at trial, and not correct
the witness’s false testimony denying such an agreement. See also People v. Blair,
186 A.D.2d 665 (2d Dep’t 1992) (noting that the scheme operated at “the
executive level of the District Attorney’s Office”).
57. People v. Fearnot, 200 A.D.2d 583 (2d Dep’t 1994): Reversing robbery
7
conviction where the prosecutor withheld prior statements of the complainant

describing the robbery, suggested, without evidentiary support, that the defendant
was a prostitute, and tried to inflame the jury by citing the AIDS epidemic.
58. People v. Kirchner, 200 A.D.2d 766 (2d Dep’t 1994): Reversing assault
conviction where the prosecution failed to disclose witness statements.
59. People v. Baxley, 84 N.Y.2d 208 (1994): Remitting a CPL 440 motion challenging
a murder conviction for a hearing to determine the truth and materiality of a
witness’s affidavit, which stated that before trial he had informed the prosecutor
that he and a People’s witness had been induced by police to fabricate a jail-house
confession, evidence the Court of Appeals deemed “crucial” to the People’s case.
(Mr. Baxley was killed in prison before the hearing could be held, according to his
counsel, Harold Ferguson.)
60. People v. Elder, 207 A.D.2d 498 (2d Dep’t 1994): Reversing conviction in part
based on prosecutor’s unspecified improper comments in summation regarding
two defense witnesses and a prosecution witness.
61. People v. Giersz, 212 A.D.2d 805 (2d Dep’t 1995): Reversing conviction where
prosecutor’s summation “exceeded the broad bounds of rhetorical comment
permissible in closing arguments.”
62. People v. Spinelli, 214 A.D.2d 135 (2d Dep’t 1995): Reversing conviction where
prosecutor failed to cross-examine defendant on his postarrest silence then
attacked the defendant’s credibility on that ground during summation, thus
unfairly depriving defendant of chance to explain the silence.
63. People v. Moss, 215 A.D.2d 594 (2d Dep’t 1995): Reversing conviction in part
based on prosecutor’s disregard of court’s Sandoval ruling when cross-examining
defendant, repeated references to defendant as a violent person, cross-examination
questions calculated to compare defendant to Hannibal Lecter in Silence of the
Lambs, remarks inviting jurors to put themselves in the shoes of victims being
threatened by defendant, and waiving of a knife in front of the jury during
summation.
64. People v. Leuthner, 216 A.D.2d 327 (2d Dep’t 1995): Reversing conviction where
prosecutor asked defendant whether the complainant was lying, asked defendant’s
character witness about her personal knowledge of the facts underlying
defendant’s past conviction, failed to establish a good-faith basis for questioning
about a threat made by the defendant’s father, and failed to stay within the four
corners of the evidence during summation.
8
65. People v. Scott, 217 A.D.2d 564 (2d Dep’t 1995): Ordering new trial based on
“flagrant” and “pervasive” summation misconduct, where prosecutor (1)
repeatedly referred to defendant as convicted felon, in an attempt to get the jury to
convict defendant based on criminal propensity, (2) denigrated defendant,
including by suggesting that defendant thought jurors just “fell off the stupid
truck,” and (3) attempted to shift the burden of proof.
66. People v. James, 218 A.D.2d 709 (2d Dep’t 1995): Ordering new trial on other
grounds but noting “some unacceptable practices engaged in by the prosecutor” —
namely, the “repeatedly condemned tactic” of suggesting during cross-
examination and summation that the complainant, in identifying the defendant,
was either correct or lying, and excessive references to the defendant’s criminal
record.
67. People v. Shim, 218 A.D.2d 757 (2d Dep’t 1995): New trial ordered where
prosecutor failed to disclose police officer’s notes.
68. People v. Ferrara, 220 A.D.2d 612 (2d Dep’t 1995): Affirming conviction but
noting that prosecutor “committed several instances of misconduct during the
course of his summation” by commenting, without proper foundation, on a
defense witness’s failure to provide the police with information; suggesting that
defense counsel’s objections had deprived jury of hearing certain testimony; and
telling the jury that it should take only 10 to 15 minutes to decide the case.
69. People v. Torres, 223 A.D.2d 741 (2d Dep’t 1996): Reversing conviction where
prosecutor made personal attacks on defense counsel and argued that there was no
evidence that defendant was somewhere other than the scene of the robbery, which
improperly shifted the burden of proof to the accused.
70. People v. Brown, 224 A.D.2d 539 (2d Dep’t 1996): New trial ordered where
prosecutor failed to disclose firearms report that contained substantially different
information than that given by People’s witness at trial, which prejudiced defense
by depriving it of the opportunity “to cross-examine the [witness] and test his
credibility.”
71. People v. Moustakis, 226 A.D.2d 401 (2d Dep’t 1996): Reversing conviction
where the prosecutor presented a cooperating witness who “forgot” the details of
his past crimes, but withheld 16 pages of interview notes detailing these crimes for
the District Attorney’s Office.
72. People v. May, 228 A.D.2d 523 (2d Dep’t 1996): Reversing a murder conviction
where the prosecutor failed to disclose a cooperation agreement with its star
witness, and failed to correct his false testimony that no such agreement existed.
9
73. People v. Croons, 231 A.D.2d 585 (2d Dep’t 1996): Reversing robbery conviction
where the prosecution wrongfully withheld prior statements of a key witness, the
complainant.
74. People v. Bonnen, 236 A.D.2d 479 (2d Dep’t 1997): Reversing conviction based
in part on prosecutor’s failure to present evidence he had promised in opening that
defendant had shot an additional victim, and then admitting at end of trial that he
had “no information” as to that victim’s whereabouts, prompting court to call
prosecutor’s representation in his opening statement “disingenuous.”
75. People v. Ying, 236 A.D.2d 630 (2d Dep’t 1997): Reversing robbery conviction on
other grounds, while condemning the prosecutor’s withholding of the terms of a
cooperation agreement with a People’s witness.
76. People v. Brown, 241 A.D.2d 460, 663 N.Y.S.2d 975 (2d Dep’t 1997): Ordering
new trial where People agreed that prosecution’s failure to disclose prior
statements of arresting officer was prejudicial and mandated reversal.
77. People v. Lippolis, 246 A.D.2d 557 (2d Dep’t 1998): Ordering new trial where
prosecutor in his opening statement, among other things, improperly called the
defendant a “parasite” and told the jury that “citizens like [them]selves indicted
this defendant”; during direct examination of the arresting officer, elicited that
defendant had remained silent after his arrest; and during summation, again
referred to defendant’s postarrest silence.
78. People v. Mackey, 249 A.D.2d 329 (2d Dep’t 1998): Reversing robbery conviction
where the prosecutor “deliberately” set a trap for the defense at trial by
withholding critical information required to be disclosed earlier.
79. People v. Walters, 251 A.D.2d 433 (2d Dep’t 1998): Ordering new trial where
prosecutor repeatedly made inflammatory remarks designed to appeal to the jury’s
sympathy, such as commenting that the victim “was probably going to be a
brilliant artist”; shifted the burden of proof by noting that the defendant did not
call additional witnesses; stated that “the only real evidence is the People’s
evidence”; accused the defendant of tailoring his testimony after hearing the
prosecution witnesses; described the defendant’s testimony as “continued lies on
top of lies, on top of lies,” and “tales and lies, back and forth, back and forth”;
gave his personal opinion on the truth and falsity of witnesses’ testimony; vouched
for the victim’s credibility; and, “most egregious[ly],” insinuated that a gun
recovered from defendant two weeks after the crime may have been used in the
charged shooting, even though the prosecutor knew that a ballistics test had
conclusively established otherwise.
80. People v. Anderson, 256 A.D.2d 413 (2d Dep’t 1998): Ordering new trial where
10
prosecutor (1) brought out only inculpatory portion of statement at trial and,
thanks to trial court error, succeeding in blocking defendant’s attempt to bring out
exculpatory portion, and (2) compounded misconduct by telling jury in summation
that accused had not made any exculpatory statement.
81. People v. Brown, 256 A.D.2d 414 (2d Dep’t 1998): Reversing conviction on
evidentiary grounds but noting as independent ground for reversal the prosecutor’s
improper comment on defendant’s declining to testify, his misstatements of the
evidence, and his references to matters not in evidence.
82. People v. Rivera, 259 A.D.2d 570, 684 N.Y.S.2d 896 (2d Dep’t 1999): Affirming
conviction but “deplor[ing] the continuous failure of the Assistant District
Attorney to follow the admonitions of the trial court regarding his improper
summation comments.”
83. People v. Alfaro, 260 A.D.2d 495 (2d Dep’t 1999): Reversing conviction on
evidentiary grounds and noting “clear impropriety” of prosecutor’s remarks in
summation that the presumption of innocence was “gone” or “vanquished”; that
while the court would instruct the jury that the defendant had “a lot of rights,” they
should also consider the victim’s rights; and that the jury should infer the
defendant’s guilt based on his having had a lawyer with him when he surrendered
to police.
84. People v. Robinson, 260 A.D.2d 508 (2d Dep’t 1999): Ordering new trial based on
prosecutor’s summation misconduct where prosecutor improperly vouched for
complainant’s truthfulness, appealed to the jury’s sympathies and fears by
describing the elderly complainant as a person who would be a “classic victim
anywhere in this city,” accused the defense of manufacturing evidence and putting
on perjurious witnesses who were “more full of crap than a Christmas turkey,”
said he was “ticked off” that members of defendant’s family were in the
courtroom when a defense witness testified, and ended by telling jury that “[t]he
only way this defendant walks out of the courtroom is if you let him.”
85. People v. Lewis, 262 A.D.2d 584 (2d Dep’t 1999): Ordering new trial in part based
on prosecutor improperly asking a witness whether defense counsel offered him
money or drugs in return for his testimony, and admonishing that such misconduct
“is not to be repeated at any subsequent trial.”
86. People v. Washington, 278 A.D.2d 517 (2d Dep’t 2000): Reversing conviction on
other grounds but noting impropriety of prosecutor’s arguments in summation that
defendant’s testimony was “a lie” and “a pile of crock,” and was “fabricate[d]”
after having had “the benefit of counsel,” and that the defense’s version of events
was “patently absurd” and that the jury should not be “fooled” by it.
11
87. Farakesh v. Artuz, No 99-CV-3945 (JG), 2000 WL 1480896 (E.D.N.Y. Oct. 3,

2000): Granting habeas petition because prosecutor impermissibly elicited
extensive testimony from detectives about defendant’s postarrest silence, and
repeatedly used this testimony in summation as evidence of defendant’s guilty
state of mind, and to impeach defendant.
88. People v. Smith, 288 A.D.2d 496 (2d Dep’t 2001): Ordering new trial where
prosecutor “repeatedly stated unqualified pronouncements of the defendant’s guilt,
often inappropriately injecting her personal views,” such as the remark, “of course
he did it. This isn’t an issue of who did it”; vouched for witnesses’ credibility;
appealed to the sympathy of the jury by commenting that the victim was
“courageous” for going to the police and for “coming before you” and that the
victim was “ill” but still came to court; referred to evidence as “uncontroverted,”
which was a veiled (and improper) reference to defendant’s declining to testify;
and implied that a witness who could not speak and therefore did not testify would
have fully corroborated the complaining witness.
89. People v. Leavy, 290 A.D.2d 516 (2d Dep’t 2002): Prosecutor withheld Brady
material such as promises of leniency given to cooperating witness, but court
upheld conviction because defense had meaningful opportunity to cross-examine
witness about it.
90. People v. Ni, 293 A.D.2d 552 (2d Dep’t 2002): Reversing assault conviction
where the prosecutor’s flagrantly improper comments during opening and closing
statements shifted the burden of proof, inflamed the jury, and denigrated the
defense.
91. Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002): Affirming grant of writ of habeas
corpus where first prosecutor caused a mistrial by withholding a crucial witness’s
cooperation agreement until the day of his testimony, then second prosecutor, on
retrial, allowed same witness to falsely deny the existence of the agreement,
objected to the defense’s efforts to bring it out, reinforced the witness’s false
denial on redirect, and bolstered the false testimony in summation.
92. People v. Lauderdale, 295 A.D.2d 539 (2d Dep’t 2002): Ordering new trial based
in part on prosecutor’s 31 references to defendant’s highly prejudicial nickname,
“Homicide.”
93. People v. Bhupsingh, 297 A.D.2d 386 (2d Dep’t 2002): Reversing on other
grounds, but noting that prosecutor’s misconduct could have served as additional
basis for reversal, where prosecutor persistently questioned defendant about
collateral matters in a manner intended to denigrate him, continually asked leading
questions of prosecution witnesses, placed inadmissible hearsay before the jury,
12
improperly elicited evidence of prior consistent statements made by the

complainant, and made inflammatory comments in summation that denigrated the
defense and appealed to the sympathy of the jury.
94. People v. Ramashwar, 299 A.D.2d 496 (2d Dep’t 2002): Reversing conviction
because prosecutor put her own credibility at issue by seeking to impeach two
defense witnesses with their inconsistent prior statements to her, and by
commenting upon the inconsistencies in summation.
95. People v. Jones, 305 A.D.2d 698 (2d Dep’t 2003): Reversing robbery conviction
where the prosecutor deliberately elicited police testimony in a manner that
created the unfair impression that the codefendant had implicated the defendant to
police, and where the trial court erroneously precluded the defense from cross-
examining the complainant, who was the sole eyewitness, regarding the length of
time it took him to identify the defendant at a lineup.
96. People v. Jamal, 307 A.D.2d 267 (2d Dep’t 2003): Ordering new trial where
prosecutor inappropriately told jury in summation that certain evidence was kept
from them for “legal reasons”; argued that indictment was evidence of defendant’s
guilt; repeatedly gave his personal opinion as to the truth of prosecution witnesses’
testimony and as to defendant’s guilt; and shifted the burden of proof by referring
to the People’s evidence as “undisputed” and “[u]ncontroverted,” while stating
that defendant had “no explanation” and “no rational defense” and asking
rhetorically, “[w]hat is the defense, ladies and gentlemen?”
97. People v. Milligan, 309 A.D.2d 950 (2d Dep’t 2003): Ordering new trial in part
based on prosecutor’s improper vouching for witnesses’ credibility.
98. Su v. Filion, 335 F.3d 119 (2d Cir. 2003): Granting habeas corpus relief in a
murder case where the prosecutor failed to disclose a crucial witness’s cooperation
agreement, knowingly presented the witness’s perjured testimony denying the
existence of such an agreement and lying about his criminal conduct, and
improperly bolstered the witness’s false testimony on summation.
99. People v. Thomas, 8 A.D.3d 303 (2d Dep’t 2004): Conviction set aside by trial
judge after verdict based on Brady violations, but verdict re-instated by Appellate
Division because issue was not preserved.
100. Turner v. Schriver, 327 F.Supp.2d 174 (E.D.N.Y. 2004): Granting federal habeas
corpus relief in a robbery case where the prosecutor failed to investigate and
disclose the criminal record of the People’s only witness to the crime, elicited false
testimony from the witness that he had no record, and gave false summation on the
witness’ absence of a criminal record to bolster the witness’ credibility.
13
101. People v. Mitchell, 14 A.D.3d 579 (2d Dep’t 2005): Reversing conviction where
prosecution withheld police reports, causing substantial prejudice to the defendant.
102. People v. Brown, 30 A.D.3d 609 (2d Dep’t 2006): Reversing conviction based on
jury-instruction error, but citing as independent ground for reversal misconduct by
the prosecutor during cross-examination and summation, including “presenting
himself as an unsworn witness at trial, suggesting that the defense counsel did not
believe his own client, making public safety arguments, and implying that certain
key evidence had been kept from the jury due to legal technicalities.”
103. People v. Knight, 18 Misc.3d 1129(A) (Sup. Ct. Queens Cty. 2007): Setting aside
verdict after defense discovered that prosecutor failed to disclose significant Brady
material concerning one of the homicide victims and related to defendant’s
legitimate self-defense claim.
104. People v. Bennett, 40 A.D.3d 653 (2d Dep’t 2007): Ordering new trial where
prosecutor ambushed defense by representing that he would not call witness and
that no Rosario existed, but then turning over Rosario material and calling
witness, and capitalizing on these unfair tactics in summation.
105. People v. Frantz, 57 A.D.3d 692 (2d Dep’t 2008): Ordering 440 hearing in murder
conviction where prosecutor failed to disclose prior inconsistent statements of
cooperating witness, who was the only witness to testify that the defendant
committed the crime, concerning such witness’s alleged observations of the
defendant.
106. People v. Sayers, 64 A.D.3d 728 (2d Dep’t 2009): Ordering new trial in part based
on prosecutor’s improper comments in opening and summation regarding
evidence of defendant’s uncharged crimes.
107. People v. Bellamy, 26 Misc. 3d 1210(A) (Sup. Ct. Queens Cty. 2010): Setting
aside murder conviction based on prosecution’s failure to disclose, among other
things, benefits given to a key prosecution witness. The prosecutor also gave a
misleading and prejudicial summation. Subsequent civil rights litigation revealed
that the prosecution participated in manufacturing false identification testimony.
108. People v. Spann, 82 A.D.3d 1013 (2d Dep’t 2011): Reversing conviction where
prosecutor improperly commented on the defendant’s medical evidence, presented
to explain his perspiration and rapid heartbeat during traffic stop, by referring to it
as a “distraction,” a “smokescreen,” and “smoke and mirrors”; impermissibly
shifted the burden of proof by telling jurors that if they did not find the
defendant’s testimony “reasonable,” they could not “form the basis of reasonable
doubt”; and stated 14 times that police had recovered a handgun from under the
passenger seat of the car, where defendant was sitting, although no evidence was
14
presented at trial to support that claim.
109. People v. Anderson, 83 A.D.3d 854 (2d Dep’t 2011): Ordering new trial where
prosecutor defied court’s Sandoval ruling to ask “a series of irrelevant and
prejudicial questions” concerning defendant’s prior narcotics conviction, and in
summation vouched for witnesses’ credibility, denigrated the defense, and
mischaracterized defendant’s testimony.
110. People v. Robinson, 34 Misc.3d 1217(A) (Crim. Ct. Queens Cty. 2011): Ordering
a hearing where prosecutor’s delay in Brady disclosure was a “clear and
unequivocal breach” of that prosecutor’s responsibility.
111. People v. Bedi, Ind. No. 4107/96 (Sup. Ct. Queens Cty. March 13, 2013) (Griffin,
A.J.S.C.): Setting aside murder conviction where prosecutor violated Brady by
failing to disclose payments made to a key witness, and by failing to correct
witness’s false testimony that he did not receive such benefits.
112. People v. Joyner, 126 A.D.3d 1002 (2d Dep’t 2015): Reversing weapon
possession conviction where prosecutor’s summation deprived defendant of a fair
trial by accusing him, without evidence, of uncharged crimes, and making
statements implying guilt by association.
113. People v. Singh, 128 A.D.3d 860 (2d Dep’t 2015): Reversing rape conviction
where prosecutor, during summation, acted as an unsworn witness, improperly
invited the jury to speculate as to certain matters, denigrated the defense while
vouching for the complainant’s credibility, and shifted the burden of proof.
114. People v. Negron, 26 N.Y.3d 262 (2015): Setting aside attempted murder
conviction where prosecutor failed to disclose evidence that was “plainly
favorable” to the defense. Prior litigation in the case revealed that after the
complainant failed to identify Negron in a lineup, the prosecutor took the
complainant into a private room with members of the NYPD, which led the
complainant to falsely identify Negron as the perpetrator.
115. People v. Cantoni, 140 A.D.3d 782 (2d Dep’t 2016): Reversing conviction where
prosecutor repeatedly shifted the burden of proof to the defendant, told the jurors
that they would have to find the People’s witnesses had lied in order to believe the
defense, vouched for the credibility of police witnesses, and denigrated the
defense.
116. People v. Redd, 141 A.D.3d 546 (2d Dep’t 2016): Reversing conviction for
“pervasive prosecutorial misconduct” where prosecutor, in opening and
summation, misstated the evidence, vouched for the credibility of witnesses, called
for speculation by the jury, made inflammatory statements, and improperly
15
denigrated the defense.
117. People v. Brisco, 145 A.D.3d 1028 (2d Dep’t 2016): Reversing conviction because
prosecutor, in summation, attacked defense counsel’s integrity, improperly
referenced facts not in evidence, misstated critical witness testimony, and made
inflammatory “safe streets” arguments.
118. People v. Davis, 147 A.D.3d 1077 (2d Dep’t 2017): Reversing conviction on other
grounds but noting that prosecutor “made improper summation comments
regarding the failure of the defendant to communicate certain information to the
police at the time of his apprehension.”
16
EXHIBIT B
Fordham Law Review

Volume 80 | Issue 2 Article 5
2011
The Supreme Court Assumes Errant Prosecutors

Will Be Disciplined by Their Offices or the Bar:
Three Case Studies that Prove that Assumption
Wrong
Joel B. Rudin
Recommended Citation
Joel B. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies that Prove
that Assumption Wrong, 80 Fordham L. Rev. 537 (2011).
Available at: http://ir.lawnet.fordham.edu/flr/vol80/iss2/5
This Symposium is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for
inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information,
please contact tmelnick@law.fordham.edu.
THE SUPREME COURT ASSUMES ERRANT

PROSECUTORS WILL BE DISCIPLINED BY THEIR
OFFICES OR THE BAR: THREE CASE STUDIES
THAT PROVE THAT ASSUMPTION WRONG
Joel B. Rudin*
INTRODUCTION
Section 1983 1 creates a civil damages remedy against “every state
official for the violation of any person’s federal constitutional or statutory
rights.” 2 Under § 1983, citizens are empowered to act as “private attorneys
general” to enforce the Constitution against individual governmental actors
or municipalities.3 In Imbler v. Pachtman, 4 the Supreme Court limited the
use of this remedy against public prosecutors, finding that, like judges, they
are entitled to absolute immunity from liability under § 1983 for conduct
“within the scope of [prosecutors’] duties in initiating and pursuing a
criminal prosecution.” 5 Recognizing that its decision might “leave the
genuinely wronged defendant without civil redress against a prosecutor
whose malicious or dishonest action deprives him of liberty,” 6 the Court
reasoned that “the immunity of prosecutors from liability . . . under § 1983
does not leave the public powerless to deter misconduct or punish that
which occurs” 7 because “a prosecutor stands perhaps unique, among
officials whose acts could deprive persons of constitutional rights, in his
amenability to professional discipline by an association of his peers.”8
* Joel B. Rudin is a New York criminal defense and plaintiff’s civil rights attorney who has
handled several of the leading cases in New York involving individual and municipal civil
liability for Brady and other due process violations by prosecutors. He is the recipient of the
New York State Association of Criminal Defense Lawyers’ 2011 Justice Thurgood S.
Marshall Award as outstanding criminal defense practitioner. An associate in his law office,
Terri S. Rosenblatt, provided invaluable assistance in the research and drafting of this article.
1. 42 U.S.C. § 1983 (2006).
2. Kalina v. Fletcher, 522 U.S. 118, 123 (1997).
3. See City of Canton v. Harris, 489 U.S. 378 (1989) (bringing claim against
municipality alleging that police officer’s failure to provide plaintiff necessary medical
attention while in police custody violated her constitutional rights); Monell v. Dep’t of Soc.
Servs. of N.Y., 436 U.S. 658 (1978) (bringing suit against the City of New York and other
governmental actors arguing that forced maternity leave violates constitutional rights).
4. 424 U.S. 409 (1976).
5. Id. at 410.
6. Id. at 427.
7. Id. at 428–29.
8. Id. at 429.
537
538 FORDHAM LAW REVIEW [Vol. 80
Imbler foreclosed a significant avenue for wronged criminal defendants

to obtain redress, but it did not preclude all potential theories of civil
liability against prosecutors and their offices under § 1983.
Notwithstanding Imbler, a prosecutor may be sued for his or her conduct in
an extra-judicial or “investigative” capacity. 9 Additionally, under Monell v.
Department of Social Services of New York 10 and City of Canton v.
Harris, 11 a municipality may be sued where the unlawful custom, policy, or
practice of its prosecutor’s office causes constitutional injury to the
plaintiff. 12 Such an “unlawful policy” may be proven by showing that a
municipality is deliberately indifferent 13 to its constitutional obligations
through its failure to train, supervise, or discipline its agents or
employees. 14
Both of these paths to prosecutorial accountability are under attack in the
courts. With anecdotal evidence suggesting a recent upswing in multi-
million dollar lawsuits filed against prosecutors’ offices,15 the Supreme
Court recently has granted certiorari in a number of cases brought against
prosecutors individually or against the municipalities that employ them. 16
In its decision denying Monell liability in Connick v. Thompson17 on March
29, 2011, the Court again relied on Imbler’s assumption that prosecutors
will be deterred from committing misconduct due to their amenability to
9. See Burns v. Reed, 500 U.S. 478, 494–96 (1991) (holding that prosecutor is entitled
only to “qualified immunity” for providing assistance to police that contributes to a
misleading arrest warrant application intended to bring a suspect before the court for
criminal proceedings); see also Kalina v. Fletcher, 522 U.S. 118, 129–31 (1997) (holding
that only qualified immunity protects prosecutor who acted like a complainant in personally
attesting to the truth of a fact necessary to obtain an arrest warrant); Buckley v. Fitzsimmons,
509 U.S. 259, 269–70 (1993) (holding that only qualified immunity protects prosecutor who
obtained a false expert opinion during a matter’s investigative stage for later use at a
criminal trial).
10. 436 U.S. 658, 694 (1978).
11. 489 U.S. 378, 398 (1989).
12. See, e.g., Walker v. City of New York, 974 F.2d 293, 300 (2d Cir. 1992).
13. Id.
14. Id.; see also Ramos v. City of New York, 729 N.Y.S.2d 678, 695–96 (App. Div.
2001).
15. See, e.g., Anahad O’Connor, $18 Million to Man Wrongly Imprisoned, N.Y. TIMES,
Oct. 20, 2010, at A22 (reporting on Newton v. City of New York, No. 07 Civ. 6211, 2010 WL
4177383 (S.D.N.Y. Oct. 22, 2010); this verdict was subsequently vacated after trial); A. G.
Sulzberger, City to Pay Record $9.9 Million over Man’s Imprisonment, N.Y. TIMES, June 4,
2010, at A19 (reporting on Gibbs v. City of New York, 714 F. Supp. 2d 419 (E.D.N.Y.
2010)); Bruce Golding, ‘Wrong Man’ $30 M. Suit, N.Y. POST (Feb. 23, 2011),
http://www.nypost.com/p/news/local/manhattan/wrong_man_suit_JY7gsJ4EK1HyVSfYWC
5V3J (reporting on Bermudez v. City of New York, No. 11 Civ. 750 (S.D.N.Y. filed Feb. 3,
2011)).
16. See Connick v. Thompson, 131 S. Ct. 1350, 1360–63 (2011) (holding that municipal
prosecutor’s office cannot be held liable under “failure to train” theory based on a “single
incident” of a Brady violation); Van de Kamp v. Goldstein, 555 U.S. 335 (2009) (District
Attorney has absolute immunity for policy concerning information-sharing with police);
McGhee v. Pottawattamie Cnty., 547 F.3d 922 (8th Cir. 2008), cert. granted, 129 S. Ct. 2002
(Apr. 20, 2009), dismissed, 130 S. Ct. 1047 (Jan. 4, 2010) (considering whether prosecutor is
immune from liability for manufacturing evidence; this case settled before a decision was
entered).
17. 131 S. Ct. 1350.
2011] DISCIPLINING ERRANT PROSECUTORS 539
“professional discipline, including sanctions, suspension, and

disbarment.” 18 This position has consistently been advocated by parties
and their amici favoring the prosecutor’s side of the debate.19
This Article challenges that assumption based on information uncovered
through the very types of Monell and individual liability lawsuits that
prosecutors and municipalities seek to curtail. A number of commentators
and scholars already have found that, contrary to Imbler, the discipline of
prosecutors rarely occurs. They also have analyzed the existing
mechanisms for internal and external prosecutorial oversight and found
that, also contrary to Imbler, such mechanisms fail to provide an effective
structure for prosecutorial accountability. The information in these articles
generally is drawn from publicly available data, or from voluntary
responses by prosecutors’ offices to surveys or interviews. This material is
summarized below in Part I.
However, the principal purpose of this Article is to present further
evidence that prosecutors are rarely disciplined, and that prosecutors’
offices lack effective policies or structures for accountability, based upon
material that their offices have been compelled to disclose during the course
of civil rights lawsuits brought by the author. These materials, presented
below in the form of case studies, show that in at least three New York City
District Attorneys’ Offices, Brady and related due process violations20
committed by public prosecutors are tolerated by their respective offices,
which almost never discipline or sanction offenders. Deposition testimony
as well as documentary discovery revealed that these District Attorneys’
Offices have no codes of conduct, 21 no formal disciplinary rules or
18. Connick, 131 S. Ct. at 1363.

19. See Petitioners’ Brief on the Merits at 13, 28, Connick v. Thompson, 131 S. Ct. 1350
(2011) (No. 09-571); Amicus Curiae Brief of the National District Attorneys Ass’n in
Support of Petitioners at 10–11, Connick v. Thompson, 131 S. Ct. 1350 (2011) (No. 09-571);
Brief of the National Ass’n of Assistant United States Attorneys & National District
Attorneys Ass’n as Amici Curiae in Support Of Petitioners at 8–17, Pottawattamie Cnty. v.
McGhee, 129 S. Ct. 2002 (2009) (No. 08-1065); Brief of Petitioners at 36, Van de Kamp v.
Goldstein, 555 U.S. 335 (2009) (No. 07-854).
20. Brady v. Maryland, 373 U.S. 83, 87–88 (1963) (holding that prosecutors have an
absolute constitutional due process obligation to turn over to defense counsel material
information favorable to the defense). The Brady rule includes material impeachment
evidence. See Giglio v. United States, 405 U.S. 150, 153–54 (1972). Prosecutors also are
obligated under the Due Process Clause to refrain from presenting false or misleading
evidence, or making false or misleading arguments, to the jury. See United States v.
Wallach, 935 F.2d 445, 456 (2d Cir. 1991).
21. As this Article went to press, the District Attorneys Association of the State of New
York released a new ethics handbook. See DIST. ATTORNEYS ASS’N OF THE STATE OF N.Y.,
“THE RIGHT THING”: ETHICAL GUIDELINES FOR PROSECUTORS (2011). This handbook
contains strong, generally progressive statements about specific ethical obligations of
prosecutors, including the obligation to disclose Brady material pursuant to constitutional
and ethical rules. Id. It also includes a strong statement of potential consequences for
prosecutors who act unethically, such as censure or written reprimand, termination,
disbarment, and even criminal prosecution. Id. at 6–7. However, the booklet makes no
reference to any obligation of District Attorneys to adopt any formal or regular disciplinary
procedures, to actually impose such discipline, or to refrain from ratifying misbehavior by
defending it in the courts. It remains to be seen whether the handbook’s exhortations will be
procedures, and no history of imposing sanctions or any other negative

consequences on prosecutors who violate Brady or related due process rules
intended to guarantee defendants the right to a fair trial. To the contrary,
they regularly defend such conduct no matter how strong the evidence that a
violation occurred. The evidence provided in these lawsuits shows that
judicial disciplinary bodies virtually never punish prosecutors for violating
ethics rules. 22
Ironically, in one of the cases discussed below, a court’s disciplinary
body suggested to a complainant that if he was not satisfied with the
confidential “admonition” given to a prosecutor who had knowingly relied
on false testimony to wrongfully imprison him, he could consult with
counsel regarding “civil remedies.” 23 When official attorney disciplinary
bodies propose civil lawsuits as an alternative to the ineffectual attorney
grievance process, it is time to question the Supreme Court’s assumption
that such “discipline” is an effective deterrent to prosecutorial misconduct.
I. COMMENTATOR AND COMMITTEE STUDIES OF PROFESSIONAL

ACCOUNTABILITY AND DISCIPLINE OF PROSECUTORS
Commentators and research committees have responded to the Supreme
Court’s assumptions about the susceptibility of prosecutors to professional
discipline by studying whether, in fact, such discipline actually occurs. In
reaching the consensus that “professional discipline of prosecutors is
extremely rare,” 24 legal commentators and other researchers have, among
other things, reviewed published decisions of state bar disciplinary
authorities and conducted voluntary surveys of prosecutors’ offices. These
published studies uniformly conclude that prosecutors are “rarely, if ever,”
punished by professional disciplinary bodies, even when they engage in
“egregious” misconduct. 25
Richard A. Rosen, in 1987, surveyed all reported cases of attorney
discipline in order to determine the proportion of those cases that involved
the discipline of criminal prosecutors for violations of the Brady rule. 26 He
also surveyed numerous state bar and prosecutorial oversight committees to
contradicted, as in the past, by official toleration of flagrant or intentional violations of the

acknowledged rules.
22. See infra Part II.
23. See infra note 223 and accompanying text.
24. Bennett L. Gershman, Reflections on Brady v. Maryland, 47 S. TEX. L. REV. 685,
722 (2006).
25. Shelby A.D. Moore, Who Is Keeping the Gate? What Do We Do when Prosecutors
Breach the Ethical Responsibilities They Have Sworn to Uphold?, 47 S. TEX. L. REV. 801,
807 (2006); see also Angela J. Davis, The Legal Profession’s Failure to Discipline
Unethical Prosecutors, 36 HOFSTRA L. REV. 275, 296 (2007) (terming the discipline received
by the prosecutor in the “Duke lacrosse” case the “Mike Nifong exception” because the case
represents a rare example of prosecutorial discipline); Ellen Yaroshefsky, Wrongful
Convictions: It Is Time to Take Prosecution Discipline Seriously, 8 D.C. L. REV. 275, 276
n.7 (2004) (citing BENNETT L. GERSHMAN, PROSECUTORIAL MISCONDUCT § 14.1 n.5 (2d ed.
2002)).
26. Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations:
A Paper Tiger, 65 N.C. L. REV. 693, 718–20 (1987).
find unpublished or otherwise unreported instances where such discipline

was imposed. 27 He found only “nine cases . . . in which discipline was
even considered,” 28 and only six where it was actually imposed. 29 Ten
years later, Jeffrey Weeks updated Rosen’s study and found that, although
there was no decrease in the amount of Brady violations committed, there
were only seven additional instances where prosecutorial discipline was
considered, and only four cases where it was actually imposed. 30
In a similar study, Fred C. Zacharias reviewed every reported case of
professional discipline for prosecutorial misconduct. 31 He found only
twenty-seven instances 32 in which prosecutors were disciplined for
unethical behavior occurring at or affecting the fairness of criminal trials,
including, but not limited to, violations of the Brady rule. 33 Zacharias’s
study compared this rate of discipline to that of all lawyers nationally and
concluded that “prosecutors are disciplined rarely, both in the abstract and
in comparison to private lawyers.” 34
In connection with special investigative reports on the causes of wrongful
convictions, committees of lawyers and other criminal justice professionals
in New York and California examined whether prosecutors are disciplined
by their own offices. The New York State Bar Association Task Force on
Wrongful Convictions (Task Force) examined fifty-three cases of wrongful
convictions that were overturned by “exoneration,” and conducted hearings
at which both defense attorneys and prosecutors testified. 35 It concluded
that thirty-one of the wrongful convictions were attributable to
“governmental practices,” which were defined to include the use of false
testimony, violation of Brady, improper evidence retention or transfer, and
refusal to investigate alternative suspects to crimes. It reported that
“research has not revealed any public disciplinary steps against
prosecutors.” 36 The Task Force also surveyed District Attorneys’ Offices
across New York State, twenty of which responded to a written
questionnaire, to determine “whether sanctions [for prosecutorial
misconduct] had ever been imposed,” and found that just one prosecutor
27. See id. at 720.

28. Id.; see also id. at 700–03 (collecting as an “example” more than fifty reported cases
of prosecutorial misconduct related to Brady).
29. Id. at 720–31.
30. Joseph R. Weeks, No Wrong Without a Remedy: The Effective Enforcement of the
Duty of Prosecutors to Disclose Exculpatory Evidence, 22 OKLA. CITY U. L. REV. 833, 881
(1997).
31. Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C. L. REV. 721,
743 (2001).
32. Id. at 751–54 tbls. VI & VII.
33. As opposed to “plainly illegal activity,” such as “bribery, extortion . . . and
embezzlement,” or “allegedly abusive behavior towards tribunals, usually consisting of
criticism of judges.” Id. at 744–47.
34. Id. at 755.
35. FINAL REPORT OF THE N.Y. STATE BAR ASS’N’S TASK FORCE ON WRONGFUL
CONVICTIONS 19, 29–31 (2009), available at http://www.nysba.org/Content/
NavigationMenu42/April42009HouseofDelegatesMeetingAgendaItems/FinalWrongfulConvi
ctionsReport.pdf.
36. Id. at 5, 17.
had been referred to an outside disciplinary committee by these offices, and

only one prosecutor had been sanctioned internally. 37 The Task Force also
took and credited testimony from the author concerning his law firm’s
findings as to internal discipline of prosecutors in New York City. 38 The
Task Force concluded, “[T]here is little or no risk to the specific
[prosecutor] involved resulting from a failure to follow the [Brady] rule.” 39
Meanwhile, in California, the Commission on the Fair Administration of
Justice (Justice Commission) made similar findings. The Justice
Commission analyzed 2,131 California cases where criminal defendants
raised claims of prosecutorial misconduct in trials, appeals, or post-
conviction litigation. 40 While courts had found prosecutorial misconduct in
444 of these cases, the Justice Commission focused on fifty-four cases that
resulted in the reversal of the conviction and which also, pursuant to a
specific provision of California Law, should have been reported to the state
bar association for disciplinary investigation. 41 The Commission could not
find a single instance where any such referral was made. 42 The
Commission concluded, “[O]ur reliance upon the State Bar as the primary
disciplinary authority is seriously hampered by underreporting.”43
Moreover, the Justice Commission cited no specific examples of internal
discipline in those cases, or in any others. 44
Finally, a study conducted by two journalists at the Chicago Tribune in
1999 also investigated whether prosecutors’ offices disciplined their
employees for prosecutorial misconduct. Their articles reported that out of
381 nationwide reversals in homicide cases (sixty-seven of which carried
death sentences) since 1963 (the year Brady was decided) for “using false
evidence or concealing evidence suggesting innocence,”45 only “one
[prosecutor] was fired, but [he] appealed and was reinstated with back
pay,” 46 “another received an in-house suspension of 30 days,” and a “third
prosecutor’s law license was suspended for 59 days, but because of other
misconduct in the case.” 47 None were disbarred or received any public
sanction. 48
Scholars have noted that prosecutors’ offices generally lack sufficient
internal mechanisms to oversee and discipline attorneys effectively. As part
37. Id. at 30–31.

38. Id. at 31; see also infra Part II.
39. FINAL REPORT OF THE N.Y. STATE BAR ASS’N’S TASK FORCE ON WRONGFUL
CONVICTIONS, supra note 35, at 29.
40. CAL. COMM. ON THE FAIR ADMIN. OF JUSTICE, FINAL REPORT 71 (Gerald Uelmen ed.,
2008), available at http://www.ccfaj.org/documents/CCFAJFinalReport.pdf.
41. See id.
42. See id.
43. Id.
44. See id. at 73–74.
45. Maurice Possley & Ken Armstrong, Trial & Error: The Flip Side of a Fair Trial,
CHI. TRIB., Jan. 11, 1999, at C1.
46. Maurice Possley & Ken Armstrong, Trial & Error: The Verdict: Dishonor, CHI.
TRIB., Jan. 10, 1999, at C1.
47. Id.
48. See id.
of a Symposium at Cardozo Law School studying prosecutorial compliance

with Brady and other discovery obligations,49 several commentators
identified design flaws in prosecutors’ offices related to this lack of
oversight. 50 Elsewhere, commentators also have faulted prosecutors’
offices for failing to implement the type of rigorous organizational
oversight models used in administrative agencies 51 and corporations.52
Rather than being uniquely amenable to professional discipline,
prosecutors’ offices appear far less equipped than other large organizations,
including police departments, to manage and discipline employees.
The above research on prosecutorial discipline and internal supervisory
policies, while contradicting the Imbler assumption about prosecutorial
discipline, is limited by the lack of access to the internal records of
prosecuting offices and to insider accounts of how such offices operate, as
well as to the often secret disciplinary practices of judicial or bar grievance
committees. The next section presents such previously unavailable
information as it relates to three large District Attorneys’ Offices in New
York: Bronx, Queens, and Kings (Brooklyn) Counties. New York City
was compelled by court orders in several Monell-based lawsuits to provide
document discovery and deposition testimony concerning these Offices’
disciplinary procedures and practices. The information that has been
disclosed further refutes the Supreme Court’s assumptions in Imbler.
49. See generally Symposium, New Perspectives on Brady and Other Disclosure
Obligations: What Really Works, 31 CARDOZO L. REV. 1943 (2010).
50. See Rachel E. Barkow, Organizational Guidelines for the Prosecutor’s Office, 31
CARDOZO L. REV. 2089, 2090–91 (2010) (explaining that prosecutors’ offices should take a
more “compliance-based” approach to misconduct because “[t]he existing framework for
addressing prosecutorial misconduct is entirely backward-looking, and ineffective”). See
generally Voices from the Field: An Inter-Professional Approach to Managing Critical
Information, 31 CARDOZO L. REV. 2037 (2010) (collecting reports from medical
professionals, police department officials, corporate psychologists, and statisticians about
alternative models for ensuring prosecutorial accountability); Barry Scheck, Professional
and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models
for Creating Them, 31 CARDOZO L. REV. 2215, 2215–16 (2010) (proposing the creation of an
external monitoring body to review dubious convictions).
51. Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons
from Administrative Law, 61 STAN. L. REV. 869, 869–70 (2009) (addressing “design flaws”
in the operation of prosecutors’ offices, which contribute to “prosecutorial overreaching”).
Barkow criticizes the vertical structure of prosecutors’ offices, in which the same prosecutor
investigating a case also prosecutes it. Id. She recommends that prosecutors’ offices should
follow the model of administrative agencies in separating officials handling investigations
from those handling advocacy functions. Id.
52. Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157
U. PA. L. REV. 959, 961 (2009) (“The resulting dangers [of the lack of prosecutorial
accountability] can be enormous.”). Bibas suggests that prosecutors’ offices would benefit
from following a corporate model in five areas: office culture; managerial structure; internal
policy-making; personnel actions, such as hiring, firing, promotion, and training; and the
dissemination of information, performance evaluations, and incentives. Following a
corporate structure would increase accountability of individual prosecutors, as well as of the
local District or State Attorney. Bibas posits that a more formalized and predictable training
and disciplinary model would tamp down prosecutors who “suffer from an excess of
adversarial zeal and a notches-on-the-belt conviction mentality.” Id. at 1000–11.
II. CASE STUDIES: THE DISCIPLINARY POLICIES, PROCEDURES, AND

HISTORY OF THREE NEW YORK CITY DISTRICT ATTORNEYS’ OFFICES
A. The Bronx District Attorney’s Office

Alberto Ramos was a criminal defendant who was unjustly convicted of
rape in 1985, freed upon the discovery of Brady violations in 1992, and
recovered a $5 million civil rights settlement in 2003. In furtherance of the
civil rights suit, the author compelled the Bronx District Attorney’s Office
to disclose personnel records for prosecutors involved in seventy-two cases
in which courts had found improper behavior by prosecutors from 1975
through 1996, and to submit to oral depositions about the Office’s
“disciplinary” practices. In subsequent companion lawsuits, which are
ongoing, brought on behalf of two former criminal co-defendants
victimized by Brady violations during an attempted murder trial in 1998,
the author and his co-counsel 53 have obtained additional records through
2007, as well as the depositions of Robert T. Johnson, Bronx District
Attorney since 1989, virtually all of his senior staff, and two line
prosecutors. These discovery materials have revealed that this major urban
prosecutor’s office, employing nearly 400 prosecutors and hundreds of
support staff, 54 has no published code or rules of behavior for prosecutors,
no schedule of potential sanctions for misbehavior or objective standards
governing when such sanctions will be imposed, no written or formal
procedure for investigating or disciplining prosecutors, and no procedure
for keeping a record of prosecutors who have been cited for or are known to
have engaged in improper behavior. Officials could identify just one
prosecutor since 1975 who, according to the Office’s records, has been
disciplined in any respect for misbehavior while prosecuting a criminal
case. Officials claim that several prosecutors have been verbally chastised,
or temporarily denied raises in compensation, but there is no apparent
record of it.
1. The Ramos Case
a. The Criminal Prosecution

Alberto Ramos was a twenty-one-year-old college student and part-time
childcare worker when he was arrested on September 6, 1984, and charged
with raping a five-year-old girl at a Bronx day care center. His arrest was
the latest in a series of highly publicized day care center sexual abuse cases
brought by then-District Attorney Mario Merola, a politically ambitious
53. Co-counsel is New York attorney Julia Kuan, who won the cases of each of the
former criminal defendants who are now plaintiffs in the lawsuits.
54. Erin Einhorn & Jonathan Lemire, DAs Urge Council: Save Us!, N.Y. DAILY NEWS,
June 4, 2010, at 18 (explaining that the Bronx D.A.’s office is under pressure to fire forty-
five prosecutors).
prosecutor. 55 In May 1985, Ramos’s case became the first of the Merola
prosecutions to come to trial. 56
The prosecution’s case was based upon the child’s sworn testimony
claiming that she had been raped in a classroom bathroom while the other
children were napping. 57 For “corroboration,” the People relied on a
doctor’s testimony that the child’s mere ability to describe sexual
intercourse indicated that she had experienced it, as well as the doctor’s
observation that the child had a vaginal irritation or rash. 58 In addition, the
child’s grandmother testified that when she picked up the girl on the day in
question, the child was upset.59 Other witnesses informed the jury that
earlier that day, Ramos, exasperated by the children’s rowdiness and his
inability to control them, had inappropriately placed tape on the upper lip of
several children, including the complainant, to quiet them. 60 In her
summation, the prosecutor forcefully argued that the child could not “make
up” her claim of having sexual intercourse and that her vaginal “bruises”
corroborated her testimony. 61
Ramos was convicted. He screamed in agony, “Kill me.” 62 Several
weeks later, the judge, expressing frustration that he could not sentence
Ramos to life in prison, meted out the maximum sentence of eight and one-
third to twenty-five years. 63 Ramos’s direct appeal and his post-judgment
motion to vacate his conviction were denied. 64 Because he continued to
deny his guilt, Ramos was likely to serve at least two-thirds, if not the
entirety, of his maximum sentence. 65 Meanwhile, the everyday reality of
his punishment was brutal: as a convicted child rapist, he was subjected to
constant physical, sexual, and verbal abuse. 66
Seven years into Ramos’s hellish incarceration, fate intervened. The
alleged victim’s mother had brought a civil lawsuit against the New York
City-funded day care center and against Ramos. The City’s private
55. See Frontline: Innocence Lost: Other Well-Known Cases, PBS,

http://www.pbs.org/wgbh/pages/frontline/shows/innocence/etc/other.html (last visited Oct.
20, 2011) (describing Merola’s prosecution of the “Bronx Five” day care center workers).
56. See Ramos v. City of New York, 729 N.Y.S.2d 678, 684 (App. Div. 2001).
57. STEPHEN GILLERS, IN THE PINK ROOM 2–3 (2006).
58. Id. at 3.
59. Id.
60. Id.
61. Id. at 3–4; see also Trial Transcript at 429, 431, People v. Ramos, No. 3280-84
(N.Y. Sup. Ct. Bronx Co. May 9–20, 1985) (on file with author).
62. GILLERS, supra note 57, at 4.
63. See People v. Ramos, 614 N.Y.S.2d 977, 980 (App. Div. 1994).
64. People v. Ramos, 124 A.D.2d 1077 (N.Y. App. Div. 1986), appeal denied, 69
N.Y.2d 832 (1987).
65. See, e.g., Daniel S. Medwed, The Innocent Prisoner’s Dilemma: Consequences of
Failing to Admit Guilt at a Parole Hearing, 93 IOWA L. REV. 491, 522 (2008) (“[P]ractically
all New York state inmates [know] that a failure to ‘admit’ guilt at [a parole] hearing would
probably ring the death knell to [their] chances for parole.”); see also Edwards v. Goord, 362
F. App’x 195, 198 (2d Cir. 2010) (challenging unsuccessfully New York State Department
of Correctional Services’ denial of “good time” credit based on inmate’s refusal to admit
guilt resulting in inmate having to serve his complete sentence).
66. See Amended Complaint at 12, Ramos v. City of New York, No. 21770-93 (N.Y.
Sup. Ct. Bronx Co. filed Oct. 20, 1995) (on file with author).
insurance carrier, fearing a massive judgment, settled, but a defense

investigator, believing Ramos to be innocent, obtained permission to share
his investigative discoveries with Ramos and his mother.67 They, in turn,
hired the author’s law firm. Based largely upon the investigator’s records,
Ramos moved for a new trial, and an evidentiary hearing was held.68
The court found in its decision that the trial prosecutor had assured
defense counsel that she would obtain and disclose all relevant social
service and day care center records, but had then failed to do so. 69 Before
or during trial, Assistant District Attorney Diana Farrell did obtain
numerous documents and interviewed teachers and administrators, but she
did not disclose the following information that was in her actual or
constructive possession 70:
(1) The child initially denied repeatedly that anything had happened
other than he “taped my mouth,” before finally accusing Ramos; 71
(2) Prior to the alleged rape, the child had described watching sexually
explicit programs on television, would use dolls to simulate sex during
show and tell in school, was described by her teachers as “sexually wiser”
than the other children and street smart, and would expose herself; 72
(3) The child used to masturbate on a regular basis in school, 73 thereby
explaining her vaginal irritation; and
(4) As revealed by a sign-in, sign-out book, the child’s grandmother had
not picked her up at all on the day in question; in fact, she had been picked
up by her aunt. 74
In vacating Ramos’s conviction, the court issued a scathing opinion
crediting the defendant’s witnesses over the sometimes contrary testimony
of the trial prosecutor. While declining to find that the prosecutor’s
misconduct had been willful, the court termed it “cavalier and haphazard,”
and continued: “The greatest crime in a civilized society is an unjust
conviction. It is truly a scandal which reflects unfavorably on all
participants in the criminal justice system.” 75 The court released Ramos on
his own recognizance, pending retrial.
The Bronx District Attorney appealed. In addition to attacking the
evidentiary basis for the lower court’s factual findings, the Office’s brief,
submitted in the name of the Bronx District Attorney Robert T. Johnson,
contended that none of the undisclosed information consisted of Brady
67. See Ramos, 614 N.Y.S.2d at 980.

68. See id.
69. See id. at 982.
70. Decision and Order at 3, People v. Ramos, No. 3280-84 (N.Y. Sup. Ct. Bronx Co.
dated June 1, 1992) (on file with author).
71. Ramos, 614 N.Y.S.2d at 981.
72. See id. at 980–81.
73. See id.
74. See id.
75. See People v. Ramos, No. 3280-84, slip op. at 9, 1992 WL 12620540 (N.Y. Sup. Ct.
Bronx Co. June 1, 1992), aff’d, 614 N.Y.S.2d 977.
material. 76 “By placing the dolls in close proximity she could have been
simulating wrestling or some other activity,” the District Attorney argued.77
What is more, the dolls were not “anatomically correct.” 78 The District
Attorney speculated that the child had not really seen sexual acts on
television because “[i]t is common knowledge that such movies do not
contain hard-core pornographic footage” 79 The new information about
masturbation was not material because the defense already had a document
suggesting the child masturbated (although on the witness stand her teacher
denied such knowledge). Finally, the District Attorney argued that the sign-
in, sign-out log need not have been disclosed because it did not “touch upon
defendant’s guilt or innocence.” 80 The Appellate Division affirmed the
lower court’s ruling in an even more scathing opinion.81 The District
Attorney’s Office then agreed that it lacked any “reasonable cause” to
continue the prosecution, and dismissed all charges. 82
b. The Attorney Grievance Process

Shortly after the trial court issued its decision vacating Ramos’s
conviction, Ramos’s prosecutor received notice from the Departmental
Disciplinary Committee of the New York State Supreme Court, Appellate
Division, First Judicial Department, of a secret sua sponte disciplinary
inquiry. 83 The Departmental Disciplinary Committee is the New York
State authority charged with the investigation and discipline of attorneys
accused of professional misconduct.84 It may initiate an investigation of an
attorney upon a complaint or “on its own initiative.” 85 Upon such
investigation, it has the authority to impose sanctions on an attorney
ranging from the most serious punishment of disbarment to a private letter
of “admonition.” 86 Under the New York State Judiciary Law, the conduct
of such an investigation—including its very existence—is confidential
unless the Disciplinary Committee finds that the attorney should be publicly
reprimanded. 87
After learning of the Disciplinary Committee’s investigation, Ramos’s
prosecutor sat down with Counsel to the District Attorney Anthony Girese,
76. Appellant’s Brief at 29, People v. Ramos, No. 3280-84 (N.Y. App. Div. Sept. 7,
1993) (on file with author).
77. See id. at 30.
78. Id.
79. Id. at 31.
80. Id. at 32.
81. People v. Ramos, 614 N.Y.S.2d 977 (App. Div. 1994).
82. Ramos v. City of New York, 729 N.Y.S.2d 678, 685 (App. Div. 2001).
83. Id. at 668–69, 750–51.
84. See Departmental Disciplinary Committee, N.Y. STATE SUPREME COURT APPELLATE
DIV. FIRST DEP’T., http://www.courts.state.ny.us/courts/ad1/Committees&Programs/DDC/
index.shtml (last visited Oct. 20, 2011).
85. N.Y. COMP. CODES R. & REGS. tit. 22, § 605.6(a) (1994).
86. Id. § 605.5(a).
87. N.Y. JUDICIARY LAW § 90(10) (McKinney 2002).
and together they prepared a letter defending her conduct. 88 The letter
stated that there was “no misconduct” on her part, and asked that any
inquiry be deferred until the appeal was decided. 89 The prosecutor also
wrote her own letters to the Disciplinary Committee defending her
conduct. 90 She also gave confidential sworn testimony, which she refused
during the lawsuit to consent to unseal. 91 The Committee dismissed the
disciplinary action. 92 At no time did the Committee afford Ramos or his
counsel notice of the prosecutor’s contentions or any opportunity to provide
any materials or arguments concerning whether she had committed ethics
violations.
c. The Civil Lawsuit

While the Ramos post-judgment hearing was underway, the Second
Circuit decided Walker v. City of New York.93 Walker contained two
principal legal holdings of relevance to Ramos. First, a District Attorney’s
failure to adequately train or supervise his staff to comply with their
obligations to disclose Brady material, and not to present false or perjured
testimony, could give rise to Monell liability under
§ 1983. 94 The plaintiff would have to show that the District Attorney had
been deliberately indifferent to an obvious need for greater training,
supervision, or discipline, and that this policy of indifference was a
substantial cause of the violation of the plaintiff’s federal constitutional
rights. 95 Second, although a New York municipality is not subject to suit
under § 1983 for a District Attorney’s “prosecutorial” decisions that he
makes on behalf of the State, it may be sued for a District Attorney’s
“managerial” or “administrative” functions that he performs as a
policymaker on behalf of the City of New York, including constitutionally
faulty training or supervision of his staff.96
Based upon Walker, and armed with the Appellate Division’s ringing
denunciation of the District Attorney’s conduct at Ramos’ criminal trial,
88. See Deposition of Diana Farrell at 683, Ramos v. City of New York, No. 21170-93
(N.Y. Sup. Ct. Bronx Co. deposed Oct. 7, 1997) (on file with author).
89. See id. at 689.
90. See Letter from Diana Farrell to Andral Bratton, Departmental Disciplinary Comm.,
Supreme Court of the State of N.Y., Appellate Div., First Dep’t (Mar. 15, 1995) (on file with
author); Letter from Diana Farrell to Andral Bratton, Departmental Disciplinary Comm.,
Supreme Court of the State of N.Y., Appellate Div., First Dep’t (Nov. 29, 1994) (on file with
author).
91. See Deposition of Diana Farrell, supra note 88, at 687.
92. See id.
93. 974 F.2d 293 (2d Cir. 1992).
94. See id. at 296, 300.
95. Although Walker suggested that a showing of inadequate training could be made
without a history of prior complaints or findings of similar misconduct, that view was
overruled by the Supreme Court in Connick v. Thompson, 131 S. Ct. 1350 (2011). However,
the Ramos lawsuit, and the others brought by the author, have been based on multiple prior
incidents of misconduct, a history of failure to discipline, and evidence of ratification
reflecting an unlawful policy.
96. Walker, 974 F.2d at 301.
Ramos elected to bring a § 1983 lawsuit in the State Supreme Court in

Bronx County. Ramos claimed that the trial prosecutor’s misconduct had
resulted from the District Attorney’s deliberate indifference to his staff’s
history of obtaining unlawful convictions by violating Brady and relying on
false or misleading evidence and argument, exhibited by his failure to
properly train, supervise, and discipline prosecutors to avoid or to deter
such violations, and by his ratification of such misconduct when it
occurred. 97
To substantiate this claim, Ramos sought disclosure of the personnel and
disciplinary records of the prosecutors who had been involved in seventy-
two reported cases in which courts had found violations of Brady
obligations (eighteen cases), or other violations of the duty not to present
false, misleading, or inflammatory evidence or summation argument (fifty-
four cases). The majority of the decisions had been handed down between
the mid-1970s and District Attorney Merola’s death in 1987, but a
significant number had occurred from 1989 through 1996, during the
Administration of District Attorney Johnson. The City resisted such
document disclosure, and moved for dismissal or summary judgment
regarding Ramos’ § 1983 claim. While the lower court denied this motion,
it limited disclosure of records to those relating to just ten of the seventy-
two court decisions. 98 Both sides appealed. Ramos fully prevailed.99
In its decision, the Appellate Division, noting the “catastrophic” result
when prosecutors wrongfully convict a defendant by withholding materially
favorable information, 100 upheld Ramos’ civil rights claim, while granting
all of the document discovery Ramos sought. Agreeing with the Second
Circuit’s analysis in Walker, the court held that under state law, a District
Attorney is a local policymaker with respect to training and supervising
staff concerning its Brady obligations. 101 The court further held that under
the facts in Ramos’s case, the City could be liable for both the District
Attorney’s consistent failure to discipline prosecutors who caused
unconstitutional convictions—by withholding Brady material or by
knowingly relying on false or misleading evidence or argument—and for
the District Attorney’s ratification of such misconduct in Ramos’s own
case, through his “strident opposition” to Ramos’s motion and failure to
discipline Ramos’s trial prosecutor. 102 The court directed the City to name
the prosecutors involved in all seventy-two misconduct cases and to provide
97. See Amended Complaint, supra note 66, at 24–36. The complaint also named as
defendants the Human Resources Administration (HRA) and the New York City Police
Department, under different theories of liability. Id.
98. Decision and Order, Ramos v. City of New York, No. 21770-93, 1999 WL
34804917 (N.Y. Sup. Ct. Bronx Co. dated Oct. 27, 1999) (on file with author).
99. Ramos v. City of New York, 729 N.Y.S.2d 678 (App. Div. 2001).
100. See id. at 681.
101. See id. at 693.
102. See id. at 694–95.
their personnel records, including their salary cards and evaluations, and
any evidence of discipline.103
The records, finally disclosed a year later without any confidentiality
order, revealed that from 1975 through 1996, during the administration of
three District Attorneys, there was just one incidence of any prosecutor
being disciplined. This prosecutor was one of fourteen prosecutors who
had been involved in more than one of the trials in which misconduct had
been found. 104 A second prosecutor had conducted five of the trials, while
a third had conducted four, 105 yet neither of these latter two prosecutors,
according to the records, had ever been disciplined.106 Indeed, the District
Attorney’s Office conceded that payroll and other records “do not indicate
the existence of any disciplinary measures taken against any of th[e]
ADAs.” 107 A more detailed review of the three prosecutors just mentioned
is revealing.
The prosecutor who received “discipline” did so in connection with a
robbery conviction he obtained after trial in February 1977.108 The
criminal defendant promptly appealed that conviction and alleged an
extraordinary number of prosecutorial improprieties.109 In a decision dated
April 13, 1978, the Appellate Division resoundingly agreed. It denounced
the prosecutor for “overzealous,” “improper conduct . . . throughout the
trial, despite repeated admonitions by the court,”110 including disparaging
the “so-called presumption of innocence” and “reasonable doubt” and
continually “disregard[ing] and overriding . . . the court’s rulings and
instructions.” 111 In reversing the conviction, the court cited the Code of
Professional Responsibility and implied that the prosecutor had violated
it. 112 The prosecutor’s salary record showed that when the trial occurred,
he was earning $21,500. 113 Notwithstanding the Office’s notice of his
misconduct presented by the defendant’s appeal, he received salary
increases over the next year of $4,500—or 21 percent. 114 After the court
handed down its decision, the prosecutor suffered a deduction of four weeks
103. See id. The court’s directive was contained in its initial, published decision and in
an unpublished supplemental order on file with the author. Plaintiff’s Second Supplemental
Demand for Discovery & Inspection, Ramos v. City of New York, No. 21770-93 (N.Y. Sup.
Ct. Bronx Co. Mar. 17, 1998) (on file with author); see also Order, Ramos v. City of New
York, No. 21770-93 (N.Y. App. Div. dated Dec. 27, 2001) (on file with author).
104. Personnel records disclosed in discovery, Ramos v. City of New York, No. 21770-93
(N.Y. Sup. Ct. Bronx Co. filed Apr. 1, 1996) (on file with author).
105. Id.
106. Id.
107. Letter from Stuart P. Levy, Assistant Dist. Attorney, Office of the Dist. Attorney,
Bronx Cnty., to Hon. Betty Owen Stinson, Supreme Court of the State of N.Y., Bronx Cnty.
(July 24, 2002) (on file with author).
108. See People v. Bussey, 403 N.Y.S.2d 739, 739 (App. Div. 1978).
109. See id.
110. Id.
111. Id. at 741–42.
112. Id. at 742.
113. Personnel records disclosed in discovery, supra note 104.
114. Id.
of pay, or approximately $2,150. 115 However, he then received a bonus of

$250 on June 30, 1978, and a $2,500 salary increase on July 1, 1978, more
than making up for his lost income. 116
Between 1978 and 1981, the same prosecutor was derided by three more
appellate opinions in two cases (although neither conviction was
reversed), 117 but continued to receive raises in compensation. Dissenting
judges in two of the decisions suggested that such “egregious” conduct be
referred for professional discipline, 118 noting that the same trial assistant
had been denounced in prior decisions for “outrageous and abusive
conduct” 119 and “improper and tasteless” behavior. 120 On November 24,
1981, Associate Judge Bernard Meyer of the New York Court of Appeals
reminded the District Attorney of his “continuing obligation with respect to
his trial assistants . . . to instruct them clearly and firmly against using such
tactics.” 121 Yet, during the four-year period beginning July 1, 1978, the
prosecutor received “merit” and other raises totaling $13,500, until he was
earning $42,000 by July 1, 1982. 122
On November 22, 1982, District Attorney Merola wrote to a member of
the Appellate Division’s Departmental Disciplinary Committee, asking it to
reconsider its initial finding in connection with a disciplinary inquiry
concerning the conduct of the prosecutor. 123 Merola assured the Committee
that he already had authorized disciplinary measures which took into
account all of the prosecutor’s misconduct and that, in light of his
subsequent performance, these early trials in his career were an
“aberration.” 124 It appears the Committee did reconsider, as there is no
evidence that the prosecutor was sanctioned.
Significantly, in the prosecutor’s next evaluation after the court decisions
in 1980 and 1981 that so vehemently condemned his performances, his
bureau chief scored his overall quality of performance as a “4” out of a
possible “5.” 125 While the supervisor noted the Assistant District
Attorney’s “involvement with the App[ellate] Div[ision] Disciplinary
Committee,” he did so not as a reflection of the quality of the prosecutor’s
trial performance, but rather as an explanation for his drop off in
“productivity.” 126 Indeed, praised for being “cooperative and
115. Id.
116. Id.
117. People v. Galloway, 54 N.Y.2d 396 (1981), aff’g 430 N.Y.S.2d 93 (App. Div. 1980);
People v. Wheeler, 438 N.Y.S.2d 467 (App. Div. 1981).
118. Galloway, 54 N.Y.2d at 414 n.4 (Meyer, J., dissenting).
119. Id. at 415 (Meyer, J., dissenting) (quoting People v. Bussey, 403 N.Y.S.2d 739, 742
(App. Div. 1978)) (internal quotation marks omitted).
120. Id. (quoting Wheeler, 438 N.Y.S.2d at 467) (internal quotation marks omitted).
121. Galloway, 54 N.Y.2d at 415.
123. Letter from Mario Merola, Dist. Attorney, Office of the Dist. Attorney, Bronx Cnty.,
to Martin London, Supreme Court, Appellate Div., Departmental Disciplinary Comm. (Nov.
22, 1982) (on file with author).
124. Id.
126. Id.
conscientious,” the only additional criticism the prosecutor received was for
“lateness . . . which he has been counseled about repeatedly.” 127 The
following year, the same supervisor had nothing but superlatives for this
Assistant District Attorney. 128 Recommending him for promotion to
“senior trial status,” the Bureau Chief gushed: “Tremendous ability to
plead def[endan]ts with the weakest proof.” 129 He continued as a Bronx
Assistant District Attorney until his retirement in 1997. 130
The prosecutor responsible for five of the misconduct decisions was
found in an appellate decision in October 1982 to have engaged in
“persistent misconduct [during summation, which] deprived the defendant
of his right to a fair trial,” resulting in the reversal of a manslaughter
conviction. 131 Three years later, the same court reversed another
manslaughter conviction obtained by the same prosecutor six months after
the prior decision. 132 The court was irate that the prosecutor had “blatantly
violated defendant’s rights” 133 even after being chastised in the prior
opinion, and termed the prosecutor’s conduct “willful and deliberate.”134
The following year, reversing a third manslaughter conviction obtained by
the same prosecutor, the same court commented:
[W]hen the misconduct is so pervasive, so egregious and results in
violations of fundamental due process rights, and the prosecutor’s
disregard of the court’s rulings and warnings is as deliberate and
reprehensible as that of this prosecutor, who has twice before provoked
reversals by this court, a reversal is the only responsible remedy we can
invoke as guardians of the rights of the People. 135
The prosecutor left the Office’s employ in 1984, after six years. There
was nothing in his personnel file to indicate that he did not leave voluntarily
or was disciplined in any way. Meanwhile, on July 1, 1983—after the trial
in which he had “blatantly violated” the defendant’s rights in conduct that
the court found to have been “willful and deliberate”—he received a salary
adjustment and “merit” bonus totaling $4,500, which amounted to more
than 10 percent of his previous salary. 136
As for the prosecutor cited in four decisions, three involved summation
and other trial-related misconduct—resulting in two reversals and one
finding of harmless error—and one involved an apparent Brady violation
which was remanded for an evidentiary hearing. 137 Within five weeks of
127. Id.
128. See id.
129. Id.
130. See id.
131. See People v. Perez, 455 N.Y.S.2d 89, 91 (App. Div. 1982).
132. See People v. Rosa, 489 N.Y.S.2d 722, 728 (App. Div. 1985).
133. Id. at 726.
134. Id. at 728.
135. People v. Sandy, 499 N.Y.S.2d 75, 77 (App. Div. 1986) (citations omitted).
137. See People v. Qualls, 70 N.Y.2d 863 (1987) (remanding for evidentiary hearing
concerning apparent Brady violation); People v. Jorge, 566 N.Y.S.2d 649, 650 (App. Div.
1991) (reversing murder conviction because prosecutor misstated the testimony and cited the
Bible while exhorting the jury to “do your duty”); People v. Taylor, 556 N.Y.S.2d 307 (App.
the first reversal, he received “merit” increases and bonuses totaling

$11,500, or more than 15 percent of his previous salary. 138 Following the
other court decisions, including the reversal in 1991, he received yearly
“merit” increases ranging from $1,000 to $4,000.139 His evaluations were
not provided.
Ramos’s trial prosecutor also received no sanction for her misbehavior.
During her deposition, she testified that “everything [she] did in connection
with the Ramos prosecution was consistent with [her] training.” 140 She
testified that she believed she was required to disclose only evidence that
was “blatantly Brady” because it “tended to exonerate the defendant” or
was “crucial” or, as to impeachment evidence, only if she determined after
investigation that it was “truthful.” 141 She revealed that shortly after the
hearing court’s decision was handed down, she met with District Attorney
Johnson, Chief Assistant Barry Kluger, and Counsel Girese, and received
their complete support, including their agreement to appeal the decision.142
Before the appeal was denied, and believing that the negative publicity
about the case had stalled her career, she voluntarily left the Office and
solicited and obtained an appointment to the “18-B” panel, a court-certified
panel of private attorneys assigned to represent indigent criminal
defendants. 143
Numerous other court decisions about which discovery was provided
involved findings of deliberate, intentional, or flagrant misbehavior. In one
case, the appellate court upheld the defendant’s claim that “he was deprived
of due process by the prosecutor’s knowing use of perjured testimony,” and
faulted the prosecutor’s failure to comport with the district attorney’s
“responsibility and duty to correct what he knows to be false and elicit the
truth.” 144 Another prosecutor, in People v. Lantigua, 145 was found to have
knowingly withheld crucial Brady material which proved the falsity of her
summation to the jury. The appellate court wrote: “It hardly advances the
interest of justice for a prosecutor to use testimony she knows to be false to
discredit the evidence given by defense witnesses during her
summation.” 146 The appellate court found yet another prosecutor’s
“decision to accuse the defendant (and squarely implicat[e] his counsel) of
fabricating his defense” during summation to be “indefensible.” 147 Other
Div. 1990) (declining to reverse for prosecutor’s Biblical quotations); People v. Hamilton,
502 N.Y.S.2d 747, 748 (App. Div. 1986) (reversing robbery conviction “because the
fundamental fairness of the trial was severely impaired by repetitive improper prosecutorial
trial tactics”).
139. Id.
140. Deposition of Diana Farrell, supra note 88, at 844.
141. Id. at 303, 318–19, 762, 767, 769.
142. Id. at 667.
143. Id.
144. People v. Olmo, 545 N.Y.S.2d 285, 286–87 (App. Div. 1989) (quoting People v.
Savvides, 1 N.Y.2d 554, 557 (1956)).
145. 643 N.Y.S.2d 963 (App. Div. 1996).
146. Id. at 969.
147. People v. Negron, 556 N.Y.S.2d 41, 43 (App. Div. 1990).
appellate decisions found flagrant or intentional summation misconduct as

well as Brady violations requiring reversal. 148 All of the prosecutors in
these cases continued to receive increases in compensation; none, according
to the records provided, were disciplined.
Two more depositions of note were conducted. Mitchell Borger, the
Assistant District Attorney who handled the beginning stages of the Ramos
prosecution, including the submission of testimony to the grand jury,
testified that he was unaware of any disciplinary policy or procedure while
he was at the Office or that any prosecutor had ever been disciplined. 149
The Executive Assistant District Attorney under District Attorney Johnson,
Eric Warner, who had been Farrell’s bureau chief at the time of the Ramos
trial and was involved in training at the time of his deposition in 2000,
testified to his understanding that Brady only applied where the defendant
had made a specific request for the material. 150 He did not recall that there
was any Brady training at all under District Attorney Merola or that he had
received such training himself; he could not find any evidence of Brady
training materials before 1995 (six years into Johnson’s tenure); 151 and he
was unaware of any Assistant District Attorney at the Office having ever
been disciplined for violating Brady. 152
Ramos’s case was concluded before any of this evidence could be
presented to a jury. In 2003, Ramos accepted a settlement of $5 million.153
148. See People v. Banfield, 599 N.Y.S.2d 227 (App. Div. 1993) (reversing conviction
where prosecutor promised witness “favorable disposition” of witness’s case, but did not
disclose that to defendants); People v. Byfield, 194 A.D.2d 331 (N.Y. App. Div. 1993)
(companion case to Banfield); People v. Mudd, 585 N.Y.S.2d 364, 366 (App. Div. 1992)
(finding summation statements “entirely outside the bounds of rhetorical comment”); People
v. McReynolds, 572 N.Y.S.2d 8, 8 (App. Div. 1991) (finding that prosecutor “so
overstepped the bounds of permissible comment that [the defendant] was denied a fair
trial”); People v. Bagarozy, 522 N.Y.S.2d 848, 854–55 (App. Div. 1987) (deciding that
inflammatory summation and evidence distracted jury from real issues in the case); People v.
Bailey, 503 N.Y.S.2d 16, 18 (App. Div. 1986) (finding that inflammatory summation and
vouching was “calculated to produce a wrongful conviction”); People v. Hamilton, 502
N.Y.S.2d 747, 750 (App. Div. 1986) (noting that “central theme” of summation was “wholly
improper”); People v. Ortiz, 497 N.Y.S.2d 678, 680 (App. Div. 1986) (reversing conviction
based on prosecutor’s “obdurate pattern of inflammatory remarks throughout the . . .
summation”); People v. Pressley, 462 N.Y.S.2d 864, 866–67 (App. Div. 1983) (reversing
conviction for prosecutor’s “repeated[ ] attack[s]” on defendant and improper “persistent
references” to defendant’s refusal to incriminate himself by cooperating with law
enforcement); see also Rosario Violation May Be Raised on CPA §440.10 Motion, N.Y. L.J.,
Sept. 8, 1989, at 21 (summarizing decision in People v. Okafor, noting that court found
Rosario and Brady violations and reversed conviction where prosecutor withheld potentially
exculpatory witness statements in a child sex abuse case).
149. Deposition of Mitchell Borger at 184–92, Ramos v. City of New York, No. 21170-
93 (N.Y. Sup. Ct. Bronx Co. deposed Mar. 11, 1998) (on file with author).
150. Deposition of Eric Warner at 52, Ramos v. City of New York, No. 21170-93 (N.Y.
Sup. Ct. Bronx Co. deposed June 15, 2000) (on file with author). But see United States v.
Agurs, 427 U.S. 97, 110–11 (1976) (Brady material must be turned over to defense even
without specific request).
151. Deposition of Eric Warner, supra note 150, at 18–20.
152. Id. at 82–83.
153. Andrea Elliott, City Gives $5 Million to Man Wrongly Imprisoned in Child’s Rape,
N.Y. TIMES, Dec. 16, 2003, at B3.
At the time, this was the largest settlement of any wrongful conviction case
in New York State. 154 Defending the conduct of the District Attorney’s
Office to the New York Times, District Attorney Johnson and Chief
Assistant Kluger contended that prosecutors were dealt with “on an
individual basis,” apparently informally, that often a prosecutor cited for
misconduct was no longer employed by the Office when the appellate
decision criticizing his conduct was handed down, and that “[n]ot one of
[the seventy-two cases] involves a finding of deliberate or intentional . . .
concealment of evidence. . . . They were technical rulings or a slip of the
tongue.” 155
2. The Maldonado and Poventud Cases

Despite the Ramos settlement and increased public attention to the
problem of wrongful convictions, attitudes at the top of the Bronx District
Attorney’s Office do not appear to have changed. This is revealed by
depositions and document discovery in two additional companion lawsuits
in which the author is co-counsel. The lawsuits arise from a joint criminal
prosecution in 1997–98 of two defendants, Robert Maldonado and Marcos
Poventud, for the attempted murder and attempted robbery of a livery cab
driver. The cab driver, who was shot in the head and barely survived, was
the only witness identifying either defendant at trial and linking them to the
crime. With the defense challenging the cab driver’s ability to make
accurate identifications, the police suppressed the fact that this eyewitness
initially had identified as one of the perpetrators a man who was in prison
when the crime occurred (the Brady material). After this information later
surfaced, Maldonado, who had spent four years in prison, was acquitted at a
retrial, while Poventud succeeded in overturning his conviction after nine
years in prison on collateral attack. Maldonado’s civil lawsuit is pending in
the State Supreme Court in the Bronx; Poventud’s is pending in the United
States District Court for the Southern District of New York. 156
In their separate lawsuits, both Maldonado and Poventud alleged that the
police suppressed the Brady material from prosecutors as well as the
defense, or alternatively that prosecutors learned about the Brady material
but colluded with the police in suppressing it from the defense. The latter
theory was part of the plaintiffs’ Monell claim, similar to the claim in the
Ramos case, contending that the Bronx District Attorney’s deliberate
indifference to a history of Brady and related due process violations
committed by his subordinates had been a substantial cause of the
154. Id.
155. Andrea Elliott & Benjamin Weiser, When Prosecutors Err, Others Pay the Price,
N.Y. TIMES, Mar. 21, 2004, at 25.
156. See Poventud v. City of New York, 07 Civ. 3998 (S.D.N.Y. filed May 22, 2007);
Maldonado v. City of New York, No. 17568-2004 (N.Y. Sup. Ct. Bronx Co. filed June 14,
2004).
misconduct that caused the plaintiffs’ wrongful convictions.157 Discovery

in the two cases was consolidated.
During pretrial discovery, the plaintiffs, as in the Ramos case, obtained
disclosure of prosecutors’ personnel and “disciplinary” records in
connection with cases where courts had found misconduct. 158 Plaintiffs’
demand was limited to cases that were decided under District Attorney
Johnson, from 1989 through 2006. 159 Not a single document was produced
evidencing any disciplinary action against any of the prosecutors.160
Depositions were taken of the Office’s executive staff, including Odalys
Alonso, the Chief Assistant District Attorney, who has responsibility for the
overall management of the Office, including hiring, firing, and discipline;
the Counsel to the District Attorney since 1989, Anthony Girese, who deals
with legal issues and has been the Office’s liaison with the Departmental
Disciplinary Committee; the Chief of Appeals since 1994, Joseph Ferdenzi;
and District Attorney Johnson.
Testifying as a representative witness under Federal Rule of Civil
Procedure 30(b)(6) on the issue of discipline at the Office, 161 Alonso
acknowledged that neither the Office’s standard employment agreement,
nor its employee manual, nor any other document, contains any provisions
concerning internal disciplining of prosecutors for misconduct in
connection with the handling of criminal cases.162 The Office has no
written policy or procedure setting forth specific rules of behavior, defining
infractions of such rules—including whether punishment may be inflicted
for negligence, recklessness, or deliberate indifference to defendants’
constitutional rights as opposed to willful, deliberate violations—or
providing notice of the types of discipline that may be imposed for
infractions. 163 The “system” for discipline is that the District Attorney is
told when court decisions or defense motions or appeals alleging improper
behavior are received by the Office, and then he determines whether to
conduct an investigation or to impose some form of discipline.164 There is
157. See Amended Complaint, Poventud v. City of New York, 07 Civ. 3998 (S.D.N.Y.
filed Oct. 28, 2010) (on file with author); Amended Complaint, Maldonado v. City of New
York, No. 17568-2004 (N.Y. Sup. Ct. Bronx Co. filed Nov. 8, 2006) (on file with author).
158. See Plaintiff’s First Set of Interrogatories & Request for Document Production,
Poventud v. City of New York, No. 07 CV 3998 (S.D.N.Y. filed Oct. 12, 2007) (on file with
author); Plaintiff’s First Set of Interrogatories and Request for Document Production,
Maldonado v. City of New York, No. 17568-2004 (N.Y. Sup. Ct. Bronx Co. filed June 14,
159. See Plaintiff’s First Set of Interrogatories & Request for Document Production,
Poventud v. City of New York, supra note 158; Plaintiff’s First Set of Interrogatories &
Request for Document Production, Maldonado v. City of New York, supra note 158.
160. Personnel records disclosed in discovery, Poventud v. City of New York, No. 07 CV
3998 (S.D.N.Y. filed May 22, 2007); Letter from Gerard J. Marino, Assistant Corp. Counsel,
City of New York Law Dep’t, to Anthony Cecutti, Romano & Kuan, LLC (Nov. 26, 2007)
(on file with author).
161. Deposition of Odalys Alonso at 2, Poventud v. City of New York, 07 Civ. 3998
(S.D.N.Y. deposed Nov. 29, 2010) (on file with author).
162. Id. at 39–42.
163. Id. at 66–70.
164. Id. at 44–45.
no standard for determining when discipline will be imposed, other than the
subjective judgment of the District Attorney.
Alonso, who has been a supervisor or a member of the executive staff
during Johnson’s entire twenty-two-year tenure in office, recalled only a
single instance of formal discipline, occurring in January 2002. 165 Girese,
in his deposition, could recall no instance.166 Neither could District
Attorney Johnson. 167 In the incident recalled by Alonso, Johnson himself
happened to walk into a courtroom where one of his Assistant District
Attorneys was delivering a summation and was offended that it contained
gratuitously inflammatory content. 168 Alonso testified that Johnson
immediately instructed that Assistant District Attorney’s supervisor to
discipline the Assistant District Attorney, which she purportedly did
through an oral admonishment and by withholding any raise or bonus at the
prosecutor’s next salary review. 169 However, no records were produced
evidencing that such sanctions were imposed. 170 On appeal, the Office
fully defended the Assistant District Attorney’s conduct as appropriate171
despite the supposed finding by the District Attorney himself that the
prosecutor had behaved so inappropriately that he deserved to be
sanctioned. This was the single prosecutor during Johnson’s twenty-two
years in office that anyone could recall was formally “disciplined” for
violating a rule of behavior in the prosecution of a criminal case.
Alonso did testify, however, that she was told by her predecessor, Chief
Assistant District Attorney Kluger, that under Johnson’s policy, whenever
the Appellate Division reversed convictions for summation misconduct, he
would orally chastise the Assistant District Attorney if he or she was still in
the Office. 172 In most of these cases, the Office was at the same time
arguing on appeal that there had been no misconduct. Johnson was
unaware of any record of Assistant District Attorneys who have been orally
chastised, and could not recall any specific instance where it occurred.173
Johnson said that prior misconduct would be a factor in a subsequent
disciplinary decision, but acknowledged that no records are kept of such
misconduct or admonitions for it. 174 Records are kept, however, of
individual prosecutors’ successes in obtaining convictions at trial and by
165. Id. at 59–60. Odalys Alonso recalled that at some point in the past Assistant District
Attorneys in the office were informed that another Assistant District Attorney was
disciplined, but she did not recall any details about it, and the prosecutor did not receive any
negative evaluation. Id. at 64.
166. Deposition of Anthony Girese at 119–20, Poventud v. City of New York, 07 Civ.
3998 (S.D.N.Y. deposed Mar. 24, 2011) (on file with author).
167. Deposition of Robert Johnson at 60–66, Poventud v. City of New York, 07 Civ.
3998 (S.D.N.Y. filed May 22, 2007) (on file with author).
168. Deposition of Odalys Alonso, supra note 161, at 124–25.
169. Id. at 131–33.
170. Id. at 140, 145–47 (stating that the prosecutor received a merit bonus and raise); see
also Personnel records disclosed in discovery, supra note 160 (on file with author).
171. Id. at 154–57.
172. See Deposition of Odalys Alonso, supra note 161, at 81–82, 289–90.
173. See Deposition of Robert Johnson, supra note 167, at 64–66.
174. See id. at 58–59, 65–67.
guilty plea. 175 Johnson testified that he has never had to consider any
discipline for Brady violations because there have been no “intentional”
violations, to his knowledge, during his twenty-two-year tenure. 176 In fact,
during the Johnson era, there have been numerous court decisions finding
flagrant or intentional Brady violations or misconduct during
summations. 177 Moreover, there have been “dozens” more decisions
finding improper behavior but declining to reverse under the harmless error
doctrine. 178
Johnson acknowledged that his Office has no policy concerning referrals
of prosecutors to the outside Departmental Disciplinary Committee for
apparent ethical violations.179 He also did not believe that the Office had
ever made such a referral during his tenure. 180 Counsel to the District
Attorney Girese testified that it has been his role, since Johnson took office
in 1989, to respond to inquiries from the Disciplinary Committee about
alleged prosecutorial misconduct in his Office. He was unaware, however,
of any instance in which any prosecutor was sanctioned in relation to the
handling of a criminal matter.181
175. See id. at 71–72. Johnson denied that he gives this factor any weight in promotions.
Id.
176. See id. at 43.
177. See, e.g., People v. Garcia, 848 N.Y.S.2d 137, 140 (App. Div. 2007) (finding
prosecutor committed “flagrant violation” when he withheld material impeachment
evidence, and criticizing the People’s defense of this conduct as “disingenuous” and
“disquieting”); People v. Mickel, 710 N.Y.S.2d 70, 71 (App. Div. 2000) (reversing
conviction where prosecutor failed to disclose “significant” Brady material); People v.
Olivero, 710 N.Y.S.2d 29, 31 (App. Div. 2000) (finding prosecutor’s comments in
summation “manifestly unfair”); People v. Lantigua, 643 N.Y.S.2d 963, 969 (App. Div.
1996) (finding that prosecutor intentionally withheld Brady material and made knowingly
false argument in summation); People v. Williams, 622 N.Y.S.2d 275, 275 (App. Div. 1995)
(“The basis for the reversal of this case lies in the prosecutor’s repeated disregard of the
rulings of the trial court . . . in asking improper questions of witnesses so that the
constitutional right of the defendant to a fair trial was violated.”); People v. Banfield, 599
N.Y.S.2d 227, 227 (App. Div. 1993) (reversing conviction where prosecutor promised
witness “favorable disposition” of witness’s case, but did not disclose that to defendants);
People v. Byfield, 194 A.D.2d 331, 332 (N.Y. App. Div. 1993) (companion case to
Banfield); People v. Hernandez, 585 N.Y.S.2d 436, 436 (App. Div. 1992) (affirming
conviction, but stating that it “deplore[d] [prosecutor’s] excesses [in summation] in the
strongest possible terms and ask[ed] that prosecutors be trained and admonished to refrain
from such unnecessary conduct”); People v. Butler, 585 N.Y.S.2d 751, 753 (App. Div. 1992)
(prosecutor’s “overzealous[ ]” conduct and “numerous unwarranted remarks” during cross-
examination and summation “deprived defendant of a fair trial”); People v. Mudd, 585
N.Y.S.2d 364, 366 (App. Div. 1992) (finding summation comments “directly contradictory
to the evidence, prejudicial and entirely outside the bounds of acceptable rhetorical
comment”); People v. McReynolds, 572 N.Y.S.2d 8, 8 (App. Div. 1991) (noting that
prosecutor “impugn[ed] the defense counsel’s integrity”); People v. Negron, 556 N.Y.S.2d
41, 43 (App. Div. 1990) (finding summation comments “particularly offensive” and conduct
“grossly improper”).
178. Deposition of Anthony Girese, supra note 166, at 129.
179. See Deposition of Robert Johnson, supra note 167, at 72–73.
180. Id.
181. Deposition of Anthony Girese, supra note 166, at 165–66.
B. The Queens District Attorney’s Office: The Su Case

1. Criminal Proceedings
Shih Wei Su was eighteen years old when he was convicted of attempted
murder at trial in Queens in 1992. The underlying incident involved the
shooting of two victims at a pool hall in what the prosecution contended
was a youth gang-related incident. 182 The principal prosecution witness
was Jeffrey Tom, a member of the Green Dragons, 183 which was a rival of
the gang with which Su was allegedly affiliated, the White Tigers.184
Neither Tom nor the two victims who were with him at the time of the
shooting implicated Su in their initial statements to police,185 but they all
changed their story at about the same time and implicated him in one way
or another. 186 Tom was the most damaging witness, claiming that he knew
Su and heard him give an order to shoot.187 Although Tom had his own
robbery-by-extortion case, he denied, under questioning by the prosecutor,
that the lenient plea bargain he had received (a youthful offender
adjudication and sentence of probation) had resulted from any deal with the
District Attorney’s Office. 188 The prosecution in her summation argued
that Tom’s testimony was truthful.189 Su was convicted and received the
maximum sentence of sixteen and two-thirds to fifty years in prison. 190
Su repeatedly challenged his conviction, both on direct appeal and
collateral attack, 191 claiming that Tom must have received some sort of
promise or benefit in exchange for his testimony. 192 However, the District
Attorney argued successfully that either Su or his attorneys were remiss for
not making Tom’s sealed plea and sentencing minutes part of the record.193
In 1999, over the District Attorney’s objection, a judge finally ordered
Tom’s plea and sentencing minutes unsealed, reasoning that the District
Attorney “has no legitimate interest in shielding possible perjury.” 194 The
minutes proved that a prosecutor had made an explicit, on-the-record deal
with Tom to grant him leniency in exchange for his trial testimony against
Su. 195 Tom’s flat denials, elicited by a different prosecutor at Su’s trial,
182. Su v. Filion, 335 F.3d 119, 122 (2d Cir. 2003).

183. See id. at 121–22.
184. See id. at 122.
185. See Complaint at 4, Su v. City of New York, No. 06 Civ. 687 (E.D.N.Y. filed Feb.
16, 2006) (on file with author).
186. Id.
187. Su, 335 F.3d at 122.
188. Id. at 123–24.
189. Id. at 124–25.
190. Complaint, supra note 185, at 8.
191. People v. Su, 624 N.Y.S.2d 904 (App. Div. 1995), leave to appeal denied, 85
N.Y.2d 980 (1995); People v. Su, 699 N.Y.S.2d 291 (App. Div. 1999), leave to appeal
denied, 94 N.Y.2d 925 (2000); People v. Su, 721 N.Y.S.2d 841 (App. Div. 2001).
192. Complaint, supra note 185, at 8 (reciting grounds for Su’s post-trial motions).
193. Id. at 8–9 (describing People’s opposition).
194. Motion: Unsealing at 2, People v. Su, No. 658-91 (N.Y. Sup. Ct. Queens Co. dated
Jan. 21, 1999) (on file with author).
195. Su v. Filion, 335 F.3d 119, 123 (2d Cir. 2003).
had been false. 196 But the New York courts still would not grant Su any
relief, accepting the District Attorney’s additional procedural argument that
Su’s Brady violation claim should not be considered on the merits.197
Finally, on July 11, 2003, the Second Circuit granted Su’s federal habeas
corpus petition and directed that he be retried within sixty days or
released. 198 The court excoriated the prosecutor for “knowingly elicit[ing]
false testimony” 199 from a witness whose credibility was “central to the
deliberations of any reasonable jury,” 200 for failing to correct such false
testimony, and for “bolster[ing]” Tom’s lies during her closing
argument. 201 In vacating the conviction, it reasoned that a conviction
obtained through “testimony the prosecutor knows to be false is repugnant
to the Constitution.” 202 As the Bronx District Attorney’s Office had done
in the Poventud case, the Queens District Attorney tried to get Su to accept
a “time-served” plea bargain, but Su refused. After postponing the trial on
several occasions, District Attorney Richard Brown’s Office, on November
5, 2003, moved to dismiss all charges. 203
2. The Attorney Grievance Process
On September 12, 2003, even while he was facing the prospect of
retrial, Su filed a formal pro se complaint against the prosecutor with the
Grievance Committee of the New York State Appellate Division, Second
Judicial Department. 204 He asked for an investigation and sanction of the
prosecutor for knowingly eliciting and failing to correct false testimony,
and attached a copy of the Second Circuit’s decision. 205 Su later submitted
a supplemental letter, informing the Committee that his case had been
dismissed for insufficient evidence, and that the prosecutor had been
responsible for his wrongful imprisonment from ages seventeen through
thirty. 206 He said he could not afford an attorney and that “while [the
prosecutor] certainly will have her powerful attorneys and friends on her
196. See id. at 121.

197. See id.
198. See id. at 130.
199. Id. at 128.
200. Id. at 129.
201. Id. at 127.
202. Id. at 126.
203. See Proceedings at 2, People v. Su, No. 0658-91 (N.Y. Sup Ct. Queens Co. dated
Nov. 5, 2003) (on file with author).
204. Letter from Shih Wei Su to Second Dep’t Grievance Comm. (Sept. 12, 2003) (on file
with author).
205. Id.
206. Letter from Shih Wei Su to Melissa D. Broder, Assistant Counsel, N.Y. State
Grievance Comm. for the Second & Eleventh Judicial Dists. (Nov. 6, 2003) (on file with
author); see also Jim Dwyer, Prosecutor Misconduct, at a Cost of $3.5 Million, N.Y. TIMES,
Oct. 22, 2008, at A27 (reporting on Su’s correspondence with the Grievance Committee).
side, I firmly believe . . . this committee will not allow [the prosecutor] to
manipulate the justice [sic] again.” 207 Su was wrong.
On December 12, 2003, the prosecutor submitted a remarkable letter
prepared by her attorney, but which she endorsed with her signature.208 It
pleaded with the Committee for sympathy, pointing out that she was
married and had two young children. The Su case “was considered old and
probably in a position to be dismissed for failure to prosecute . . . [and] was
thought to be a loser and was dumped in her lap,” the letter contended.209
“[P]erhaps without being adept as a result of her inexperience,” the letter
asserted, the prosecutor had inadvertently elicited false answers from her
witness and had not known how to correct them. 210 While acknowledging
that the prosecutor’s conduct had been “naive, inexperienced and, possibly,
stupid,” the letter shifted blame to the District Attorney’s Office for not
ensuring that she knew about the deal made by another prosecutor with her
witness, contending, “[P]rosecutorial misconduct need not be the doing of
the last assigned assistant, though he/she unwittingly kept it in motion and
caused it to occur.” 211
Su refuted the prosecutor’s arguments by letter dated January 22,
2004. 212 He contended that she had not just been a passive, hapless victim
of a rogue witness, but had refused to correct Tom’s testimony when Su’s
trial counsel had complained that it could not be true, and that she then
“capitalized” on the false testimony in her summation by “vouch[ing] for
Tom’s truthfulness, honesty, and lack of evasiveness.” 213 Su pointed out
that the Second Circuit’s decision had found her misconduct to have been
deliberate. Further, Su contended, the prosecutor could not blame her
knowing elicitation of and failure to correct false testimony on inexperience
when basic attorney disciplinary rules prohibit deceitful behavior and
reliance on false or misleading evidence, and prosecutors are required by
such rules to make timely disclosure of exculpatory evidence. “The
Grievance Committee and the Appellate Division regularly sanction
attorneys for mere negligence in handling client funds and other client
matters,” Su wrote. 214 Observing that the prosecutor had “cost me 13 years
of my life,” Su continued, “[e]ven intentional misconduct in such matters
Grievance Comm. for the Second & Eleventh Judicial Dists. (Nov. 6, 2003) (on file with
author).
208. Letter from Jerome Karp to Melissa D. Broder, Assistant Counsel, N.Y. State
Grievance Comm. for the Second & Eleventh Judicial Dists. (Dec. 12, 2003) (on file with
author); Dwyer, supra note 206, at A27. This letter was quoted in Mr. Dwyer’s article, was
the subject of questioning during the prosecutor’s deposition in Su’s civil rights case, and
was introduced as an exhibit.
209. Letter from Jerome Karp to Melissa D. Broder, supra note 208.
210. Id.
211. Id.
Grievance Comm. for the Second & Eleventh Judicial Dists. (Jan. 22, 2004) (on file with
author).
213. Id.
214. Id.
pales in importance compared to the damage done by a public prosecutor

who knowingly withholds exculpatory evidence or misleads the court or the
defense.” 215 He asked for permission to participate in the proceedings
regarding the prosecutor.
Su did not hear at all from the Committee, until he received a seven-line
letter from Chief Counsel Diana Maxfield Kearse over a year later. It
informed Su that, on December 14, 2004, “all the facts pertaining to your
complaint were presented to the Grievance Committee,” and it had taken
“appropriate action”: “the attorney has been issued an Admonition and a
permanent record has been made.” 216 An “admonition” is the lightest
sanction that may be imposed in New York, and does not result in any
public record. 217
On February 28, Su wrote Ms. Kearse, asking what “investigation,” if
any, had been conducted. 218 “Was [the prosecutor]’s unbelievable defense
that she was unaware of her obligation to correct testimony she knew to be
false challenged in any way? . . . What was the Committee’s reasoning in
concluding that knowing misconduct by an experienced prosecutor (four
years in the Office!) resulting in a wrongful conviction and 13 years
imprisonment merited only an Admonition?” 219 Su requested the
opportunity to present his case to the full Committee.220
Assistant Counsel Melissa D. Broder responded on March 22, 2005.
There is no procedure to appeal a sanction, she wrote. Su was “free to
consult with counsel regarding any civil remedies which may be available
to you regarding the above-named attorney.” 221 Su still did not give up.
On March 30, he again wrote Chief Counsel Kearse:
Even jaywalking can get prison time. So can stealing a loaf of bread.
How is it possible that an experienced prosecutor who knowingly broke
every bar association code, every Constitutional law, and more only gets
an admonition?
I am not a lawyer . . . but I guarantee you that any person, no matter
how “naive, inexperience[d], or possibly stupid,” will know that false
evidence is not allowed in the court.
215. Id.
216. Letter from Diana Maxfield Kearse, Chief Counsel, N.Y. State Grievance Comm. for
the Second & Eleventh Judicial Dists., to Shih Wei Su (Feb. 3, 2005) (on file with author).
217. See Appellate Div. Second Judicial Dep’t, Attorney Matters: How to Make a
Complaint About a Lawyer, http://www.courts.state.ny.us/courts/ad2/attorneymatters_
ComplaintAboutaLawyer.shtml (last visited Oct. 20, 2011), (“An Admonition is issued in
those cases in which the committee finds that the lawyer committed clear professional
misconduct that was not sufficiently serious to warrant the commencement of a formal
disciplinary proceeding.”).
218. Letter from Shih Wei Su to Diana Maxfield Kearse, Chief Counsel, N.Y. State
Grievance Comm. for the Second & Eleventh Judicial Dists. (Feb. 28, 2005) (on file with
author).
219. Id.
220. Id.
221. Letter from Melissa D. Broder, Assistant Counsel, N.Y. State Grievance Comm. for
the Second & Eleventh Judicial Dists., to Shih Wei Su (Mar. 22, 2005) (on file with author).
With all due respect, the message that this committee is sending out is
loud and clear: Don’t worry about using false evidence; you will only get
an admonition if you are stupid enough to admit it. 222
On April 26, 2005, Broder curtly reminded Su that “this matter is closed”
and that he could consult with counsel regarding “civil remedies . . . . This
should conclude our correspondences regarding this matter.” 223
3. The Civil Lawsuit
On February 16, 2006, Su took up the Grievance Committee’s
suggestion. He filed suit against the City of New York in the United States
District Court for the Eastern District of New York, seeking monetary
damages pursuant to § 1983 for his wrongful conviction. 224 His lawsuit,
modeled after the Ramos and Walker cases, contended that the prosecutor’s
misconduct had resulted from the deliberate indifference of the Queens
District Attorney to his obligation to properly train, supervise, and
discipline his staff regarding their Brady and related due process
obligations. 225 Su attached to his complaint an exhibit listing twenty-eight
cases, decided between 1985 and 2004, involving wrongful withholding of
evidence by Queens prosecutors, and fifty-nine cases in which such
prosecutors during the same time frame relied on false, misleading, or
inflammatory evidence or argument. 226
During discovery proceedings, the court directed the City to provide
personnel and disciplinary records (if any) for prosecutors involved in
seventy-three appellate reversals for such misconduct, during the thirteen-
year period from 1985 through 1998, including twenty-five cases involving
the withholding of material evidence. When disclosed, the records did not
reveal a single instance through 2000 in which any prosecutor had been
disciplined by way of dismissal, suspension, demotion, transfer, reduction
in or withholding of compensation, negative written evaluation, or referral
to the court’s Grievance Committee, for any of the seventy-three cases.227
Discovery materials showed that, as in the Bronx, the Queens District
Attorney’s Office had (and has) no published or formal code of conduct for
prosecutors, or any formal disciplinary policies or procedures. The
informal “procedure” was for the Chief of Appeals, whenever a motion or
brief was received that caused him to be “concerned” about possible
misconduct, to bring the matter to the attention of the Chief Assistant
222. Letter from Shih Wei Su to Diana Maxfield Kearse, Chief Counsel, NYS Grievance
Comm. for the Second & Eleventh Judicial Dists. (Mar. 30, 2005) (on file with author).
223. Letter from Melissa D. Broder, Assistant Counsel, NYS Grievance Comm. for the
Second & Eleventh Judicial Dists., to Shih Wei Su (Apr. 26, 2005) (on file with author).
224. Complaint, supra note 185, at 1.
225. See id. at 12–15.
226. See id. at Ex. B.
227. Personnel records disclosed in discovery, Su v. City of New York, 06 Civ. 687
(E.D.N.Y. filed Feb. 16, 2006) (on filed with author). As with the Bronx District Attorney’s
Office, names of the line prosecutors apparently involved in misconduct have been omitted,
as they are unnecessary for the purposes of this Article.
District Attorney or District Attorney Richard Brown. 228 Trial bureau

supervisors might also report concerns up the chain of command. 229 Also,
the District Attorney would receive copies of appellate decisions.230 If the
District Attorney concluded that a verbal reprimand was in order, he would
handwrite a note to the Chief Assistant District Attorney, John Ryan, to
“speak to” the Assistant District Attorney involved. 231 However, only three
such notes were produced, 232 neither Castellano nor Testagrossa knew of
any Assistant District Attorney who actually had been “spoken to,” 233 and
there was no such evidence in any prosecutor’s personnel file 234—with one
exception.
Assistant District Attorney Claude Stuart was caught apparently lying to
a state court judge about whether an exculpatory witness was available to
come to court to testify, and his alleged misconduct was reported in the
news media. 235 The Disciplinary Committee ultimately suspended him
from practice and he was fired by the District Attorney’s Office. 236 This
fiasco might never have occurred had the Office disciplined Stuart when he
previously was exposed for alleged misconduct. In 1995, Stuart had
obtained a conviction in People v. Walters 237 by arguing in summation that
the defendant had committed a shooting with a gun recovered from him
which Stuart knew had not been used in the crime. 238 The appellate court
reversed the conviction, finding Stuart’s conduct “an abrogation of his
responsibility as a prosecutor,” “egregious,” and “improper.” 239 The
District Attorney’s Chief of Appeals, John Castellano, testified in his
deposition that he told the Chief Assistant District Attorney, John Ryan,
that Stuart’s conduct had been “not tolerable” and “inexcusable.”240
However, Castellano was unaware if Stuart had been disciplined for that
misconduct, and there was no discovery suggesting that he had been. 241
The deposition of Su’s prosecutor provided an interesting insight into the
Office’s attitude regarding Brady compliance. While she acknowledged
that her failure to disclose the truth about Jeffrey Tom’s relationship with
the Office had been inexcusable, she revealed that it had been consistent
with her training to erect a “Chinese wall” in order to avoid obtaining
228. Deposition of John Castellano at 22–23, Su v. City of New York, 06 Civ. 687
(E.D.N.Y. deposed May 29, 2008) (on file with author).
229. Deposition of Charles Testagrossa at 19, Su v. City of New York, 06 Civ. 687
(E.D.N.Y. deposed June 11, 2008) (on file with author).
230. Id. at 27.
231. Deposition of John Castellano, supra note 228, at 257–58.
233. See Deposition of Charles Testagrossa, supra note 229, at 19; Deposition of John
Castellano, supra note 228, at 257–58.
235. Stacy Albin, Queens: Murder Conviction Questioned, N.Y. TIMES, Nov. 14, 2002,
at B12.
236. In re Stuart, 803 N.Y.S.2d 577 (App. Div. 2005).
237. 674 N.Y.S.2d 114 (App. Div. 1998).
238. See id. at 116.
239. Id.
240. Deposition of John Castellano, supra note 228, at 263.
241. Id. at 263–64; see also Personnel records disclosed in discovery, supra note 227.
knowledge of deals other prosecutors in the Office had made with

cooperating witnesses. 242 This policy was inconsistent with Ethical
Consideration 7-13 of the New York State Code of Professional
Responsibility, which prohibited prosecutors from consciously avoiding
knowledge they are required to disclose to their adversaries. 243
The Chinese wall policy was exposed and condemned in People v.
Steadman, 244 even before Su’s case was tried. In Steadman, the New York
Court of Appeals blasted the Queens District Attorney’s unlawful policy,
promulgated at an executive level, to erect just such a Chinese wall between
trial prosecutors utilizing a cooperating witness and the prosecutor making
a deal with the witness. 245 The Office’s Chief of Trials, Daniel McCarthy,
had made the deal with a witness’s attorney, knowing that the witness
would later invoke attorney-client privilege to shield himself from cross-
examination when he falsely denied knowledge of promised benefits.246
The trial prosecutors had kept themselves ignorant of the discussions, and
had done nothing to correct the witness’s false or misleading denial of
knowledge of any promises. 247 After the witness’s attorney, as an act of
conscience, had disclosed the scheme to the defense and it had been
denounced in a scathing opinion by the trial judge (issued before Su’s
trial), 248 the Office defended it on appeal as lawful, and promoted one of
the two line prosecutors to a supervisory position. 249 This prosecutor was
not even chastised for his behavior in the case. 250 Meanwhile, Chief of
Trials McCarthy was hired by Bronx District Attorney Johnson to become
his Director of Trial Training. 251 In his deposition, Johnson denied having
ever been aware of Steadman, before or after hiring McCarthy, 252 even
though McCarthy’s misconduct had been denounced in written opinions by
the trial judge, the Appellate Division, and the Court of Appeals. The
Queens District Attorney conducted no internal investigation.253
242. Deposition of Su’s Prosecutor at 39–41, Su v. City of New York, 06 Civ. 687
(E.D.N.Y. deposed June 19, 2008) (on file with author).
243. See New York Lawyer’s Code of Professional Responsibility EC 7-13, available at
http://www.nysba.org/Content/NavigationMenu/ForAttorneys/ProfessionalStandardsforAttor
neys/LawyersCodeDec2807.pdf (“[A] prosecutor should not intentionally avoid pursuit of
evidence merely because he or she believes it will damage the prosecutor’s case or aid the
accused.”). Though this ethics code has been superseded, it was the relevant language at the
time of Su’s prosecution.
244. 82 N.Y.2d 1 (1993).
245. See id. at 7–8.
246. See id.
247. Id.
248. Opinion and Order at 6–7, People v. Steadman, No. 3331-88 (N.Y. Sup. Ct. Queens
Co. dated Apr. 20, 1990) (on file with author).
249. See Deposition of Jack Warsawsky at 12, Su v. City of New York, 06 Civ. 687
(E.D.N.Y. deposed July 15, 2008) (on file with author) (testifying as to the promotion).
250. See id. at 135–36.
251. Deposition of Daniel McCarthy at 9, Su v. City of New York, 06 Civ. 687 (E.D.N.Y.
deposed Aug. 11, 2008) (on file with author).
252. Deposition of Robert Johnson, supra note 167, at 76–78.
253. Deposition of John Castellano, supra note 228, at 204.
Su’s prosecutor’s behavior in failing to disclose the truth about the

Jeffrey Tom deal should have been known internally for years, but the
Office was indifferent to it. Prosecutors assigned to oppose Su’s direct
appeal and collateral attacks on his conviction acknowledged that they had
an ongoing Brady obligation to investigate whether Su’s Brady allegations
were correct, but they never did so. When one such Assistant District
Attorney attempted to question Su’s trial prosecutor, the latter refused to
cooperate, and no one in the Appeals Bureau brought this remarkable and
intolerable stonewalling to the attention of executives in the Office.254
After Su filed his federal habeas petition, Chief of Appeals Castellano
questioned Su’s prosecutor, who claimed not to recall why she had not
corrected Tom’s false testimony, and Castellano conducted no further
investigation into her behavior before preparing opposition papers.255 In
2003, shortly after she had left the Office, Su’s prosecutor learned from a
news report that the Second Circuit had vacated Su’s conviction, and
telephoned John Ryan, the District Attorney’s long-time Chief Assistant, to
complain. Ryan responded: “[Y]ou are just going to have a bad day, that’s
all.” 256 Another high-level prosecutor in the Office told her, “Don’t worry,
you’re a good attorney. Everything will work out.” 257
In another case resulting in federal habeas relief and strong condemnation
of the prosecutor’s conduct, there was no internal discipline but instead the
prosecutor was promoted. In Jenkins v. Artuz, 258 a federal judge, granting
habeas relief, found that the prosecutor had “engaged in a pattern of
misconduct that was designed to conceal the existence of [a witness’s]
cooperation agreement during [Jenkins’s] trial,”259 and that this misconduct
was “improper and, when considered cumulatively, severe.” 260 Refusing to
admit error, the District Attorney’s Office appealed. The Second Circuit
affirmed the District Court’s issuance of the writ, holding that the
prosecutor “misled the jury,” both in her questioning of the cooperating
witness and during her summation, 261 and that “no doubt . . . [this] behavior
violated Jenkins’s due process rights.” 262 Deposition testimony and other
discovery revealed that the Queens District Attorney did not even
informally admonish the prosecutor. 263 She received a promotion not long
after Jenkins was convicted and currently is a Deputy Chief in one of the
Queens District Attorney’s Office’s trial bureaus.264 Numerous additional
254. Deposition of Ranjana Piplani at 24–26, Su v. City of New York, 06 Civ. 687
(E.D.N.Y. deposed May 22, 2008) (on file with author).
255. Deposition of John Castellano, supra note 228, at 73–77, 87.
256. Deposition of Su’s Prosecutor, supra note 242, at 19.
257. Id. at 18.
258. 294 F.3d 284 (2d Cir. 2002).
259. Id. at 290 (quoting Jenkins v. Artuz, No. 98-CV-277, slip op. at 27 (S.D.N.Y. May
16, 2001)).
260. Id.
261. Id. at 294.
262. Id.
263. See Deposition of Therese Lendino at 11, Su v. City of New York, No. 06 Civ. 687
(E.D.N.Y. deposed Aug. 6, 2008) (on file with author).
264. See id.
decisions used strong language in condemning what the courts sometimes

concluded was intentional misconduct,265 but records reflected no internal
sanctions.
While no records were kept of complaints, findings of misconduct, or
alleged reprimands, the contrary was true when it came to success in
obtaining convictions. Charles Testagrossa, Executive Assistant District
Attorney in charge of the Major Crimes Division in 2008 and an executive
at the office for nearly twenty years, testified at his deposition that Assistant
District Attorneys and their supervisors, under previous and the present
District Attorneys, kept track of their trial win-loss records. 266 He said he
perceived that their victory percentage affected their promotions and
compensation. 267
As discovery in the Su case neared completion, the City strenuously
opposed the plaintiff’s efforts to depose the District Attorney, Richard
Brown, and his chief assistant, John Ryan, concerning their Brady
disclosure and disciplinary policies. After the court directed Ryan to
submit to a deposition and held open the possibility that Brown could be
deposed as well, the parties reached a $3.5 million settlement.
C. Brooklyn District Attorney’s Office: The Zahrey Case

1. Criminal Proceedings
Zaher Zahrey was an undercover narcotics detective for the New York
City Police Department’s Brooklyn North narcotics division with an
excellent performance record when he fell under investigation by the
NYPD’s Internal Affairs Bureau (IAB) in 1994. 268 IAB had been
reconstituted to more vigorously combat police corruption after highly-
265. See, e.g., People v. Ni, 742 N.Y.S.2d 61, 62 (App. Div. 2002) (“[I]nstances of
prosecutorial misconduct were flagrant.”); People v. Mackey, 670 N.Y.S.2d 879, 880 (App.
Div. 1998) (“[P]rosecutor deliberately withheld information which was likely to be elicited
on cross-examination.”); People v. Elder, 615 N.Y.S.2d 915, 916 (App. Div. 1998) (finding
that prosecutor’s improper summation comments were “flagrant”); People v. Scott, 629
N.Y.S.2d 267, 268 (App. Div. 1995) (finding “flagrant” and “pervasive” prosecutorial
misconduct); People v. Robinson, 594 N.Y.S.2d 801, 802–03 (App. Div. 1993) (noting that
prosecutor’s improper trial tactics and summation comments were “continued” and
“persistent”); People v. Gomez, 548 N.Y.S.2d 568, 570 (App. Div. 1989) (reversing
conviction for prosecutor’s “frequen[t]” and “outrageous” “misconduct” during trial); People
v. Perez, 511 N.Y.S.2d 687, 690 (App. Div. 1987) (finding that prosecutor made a
“deliberate attempt to mislead the jury”). In other cases, the appellate courts criticized
prosecutors’ conduct as reckless or negligent. See, e.g., People v. Banch, 80 N.Y.2d 610, 621
(1992) (criticizing “the People’s seeming lack of care in discharging their discovery
obligation”).
266. See Deposition of Charles Testagrossa, supra note 229, at 44–45.
267. See id. at 46.
268. Fifth Amended Complaint at 11, 14, Zahrey v. City of New York, No. 98 Civ. 4546
(S.D.N.Y. filed Feb. 23, 2004) (on file with author). See generally Zahrey v. Coffey, 221
F.3d 342 (2d Cir. 2000).
publicized hearings had exposed the department’s lethargy in that regard.269

Zahrey was suspected because he had continued playing playground “pick-
up” basketball games with several individuals whom the police believed
had been involved in criminal activity, including a local basketball legend
and childhood friend, William Rivera. 270 When Rivera was murdered,
Zahrey came forward to try to assist Rivera’s family in finding out the
status of the homicide investigation, only to walk into a hornet’s nest of
IAB detectives who were on the case because the murder weapon had been
an off-duty police officer’s gun. 271
An intensive, two-year investigation yielded just one witness—a crack-
addicted career criminal named Sidney Quick—who claimed knowledge
that Zahrey had committed crimes. 272 At the direction of the Brooklyn
District Attorney’s Office, IAB Detective-Sergeant Robert Boyce
repeatedly interviewed Quick, obtaining bizarrely inconsistent accusations
that Zahrey had provided Rivera’s alleged hold-up crew with confidential
Police Department information on drug spots that could be robbed.273
When these interviews led nowhere, Boyce later traveled to Sing-Sing State
Prison, where Quick was by then serving a six-to-life sentence for
robbery. 274 Remarkably, Boyce tape-recorded the entire, two-hour
interview in which he promised Quick “a very sweet deal” in exchange for
his cooperation against Zahrey, and suggested a story to Quick, which was
demonstrably false, implicating Zahrey in the attempted robbery and
murder of a drug dealer. 275 Brooklyn prosecutors who heard the tape tried
for nearly two years to develop corroboration for Quick’s accusations, a
necessary prerequisite for prosecution under New York State law, but when
they were unable to do so, they convinced federal authorities (who were not
legally required to obtain corroboration) to take over the case and to
prosecute—without initially disclosing the Quick tape and other
exculpatory and impeaching information. 276 Zahrey was held for nearly
nine months without bail, pending the conclusion of federal trial
proceedings. 277 After a six-week trial, at which the author represented him,
he was fully acquitted in June 1997. 278
2. Civil Proceedings
In 1998, Zahrey brought a lawsuit against various individual prosecutors
and detectives for investigative misconduct, and against the City of New
269. Craig Horowitz, A Cop’s Tale, N.Y. MAG., July 16, 2001, at 32 (explaining that the
Internal Affairs bureau was “beefed-up” shortly before the Zahrey prosecution “in the wake
of the Mollen Commission report”).
270. Fifth Amended Complaint, supra note 268, at 11–13.
271. See id. at 12.
272. See id. at 14–16.
273. See id.
274. See id. at 16.
275. See id. at 18–24.
276. See id. at 37–39.
277. See id. at 47, 50–51.
278. See id. at 52.
York. 279 One of his claims was that the indifference of Brooklyn District
Attorney Charles J. Hynes to violations of the Office’s Brady and related
due process obligations had caused the Office’s line prosecutors
investigating the matter to withhold exculpatory information from the
United States Attorney’s Office, while simultaneously urging that Office to
initiate Zahrey’s prosecution. 280 The Brady claim was ultimately
dismissed, 281 but before settling, 282 Zahrey succeeded in obtaining
considerable discovery showing that the Brooklyn District Attorney’s
Office, like its counterparts in Queens and the Bronx, has no formal
disciplinary rules and procedures, and no history of disciplining prosecutors
found to have engaged in misconduct, including the withholding of Brady
material.
In a deposition held on October 18, 2005, Dino G. Amoroso, former
Counsel to the District Attorney, and then Executive Assistant District
Attorney, testified that he was responsible for implementing Hynes’
policies to ensure compliance with ethical standards and was
knowledgeable about any specific investigations of prosecutors for alleged
misconduct since Hynes’ tenure began in 1990. 283 The Office had no
employee manual or other published rules or procedures concerning
standards of behavior, potential sanctions for violating them, or procedures
for investigating and imposing discipline, including with regard to Brady
obligations. 284 The Office would distribute memoranda on discovery and
Brady obligations, but had no follow-up procedure to make sure individual
prosecutors read them, and no Brady “policy.” 285 Prosecutors were told
informally that “conscious” ethical violations, including under Brady,
would have the “highest consequence,” including dismissal from the
Office—as opposed to inadvertent mistakes during the “hurly-burly of
trials.” 286 Consistent with that approach, while it was conceivable that a
279. Zahrey v. City of New York, No. 98 Civ. 4546 (S.D.N.Y. filed June 26, 1998).
280. Fifth Amended Complaint, supra note 268, at 65–66.
281. Zahrey v. City of New York, No. 98 Civ. 4546, 2009 WL 54495, at *26 (S.D.N.Y.
Jan. 7, 2009) (reasoning that Zahrey had not been prejudiced by any Brady violations since
he was acquitted at trial, but holding that Brooklyn prosecutors were subject to personal
liability for their involvement in manufacturing and using evidence they knew had been
manufactured to cause federal criminal proceedings to be initiated and continued against
Zahrey).
282. Zahrey settled in 2009 with the City and five individual defendants, including two
supervisory prosecutors. These two prosecutors, Charles Guria, the Chief of the Brooklyn
District Attorney’s Civil Rights Bureau, and Theresa Corrigan, now the Chief of the Gang
Unit of the Nassau County District Attorney’s office and formerly a supervisor in Brooklyn,
agreed to a judgment without admitting liability, pursuant to Federal Rule of Civil Procedure
68, under which they were jointly and severally liable for $750,001 plus reasonable
attorneys’ fees for their alleged investigative misconduct. The judgment was paid by New
York City.
283. Deposition of Dino G. Amoroso at 16–17, Zahrey v. City of New York, 98 Civ.
4546 (S.D.N.Y. deposed Oct. 18, 2005) (on file with author).
284. Id. at 91–92.
285. Deposition of Dennis Hawkins at 10–11, Zahrey v. City of New York, 98 Civ. 4546
(S.D.N.Y. deposed Mar. 13, 2000) (on file with author).
286. Deposition of Dino G. Amoroso, supra note 283, at 90, 181–82.
prosecutor might deserve sanction for merely violating Brady “negligently,”

ordinarily only intentional misconduct would be punished.287
Amoroso testified that when a complaint or court decision was received
identifying a possible ethical issue, it would be brought to the attention of
the District Attorney, who would decide whether an investigation should be
conducted or whether any other action was necessary.288 Amoroso was
fully informed about all such investigations that were conducted from 1990
to 2005. While he initially claimed that several disciplinary inquiries were
conducted, he then acknowledged that none of them were for the purpose of
determining whether a prosecutor had engaged in ethical lapses during the
handling of criminal prosecutions. Rather, the investigations either were
into personal misconduct by Assistant District Attorneys having nothing to
do with their handling of individual cases, or concerned whether to retry
defendants whose convictions had been reversed or vacated.289 He did not
know of a single instance in which any prosecutor had been so much as
admonished for misconduct related to his or her handling of a criminal
investigation or prosecution.290
During this fifteen-year period, however, there were numerous court
decisions finding serious misbehavior by Brooklyn prosecutors, including
in the Brady context. These cases included instances where Assistant
District Attorneys withheld exculpatory witness statements or impeachment
material, or made false and/or misleading presentations of the evidence at
trial.291 Numerous additional instances of misconduct through the present
day were identified in the complaint in Collins v. City of New York, a
lawsuit the author recently filed based upon findings by a federal judge of
pervasive Brady violations, witness coercion, and other misconduct by the
Chief of District Attorney Hynes’ Rackets Division, Michael F.
Vecchione.292 In the highly publicized Jabbar Collins murder case,
287. Id. at 102–05.

288. Id. at 92–94.
289. Id. at 96–102, 105, 107, 110, 126–28, 133, 145–48.
290. Id. at 101–02, 105, 107, 128, 146–48.
291. See, e.g., Leka v. Portuondo, 257 F.3d 89, 106 (2d Cir. 2001) (prosecutor suppressed
evidence that would have had a “seismic impact” on the case); People v. Calabria, 94 N.Y.2d
519 (2000) (prosecutor repeatedly defied court’s ruling and made false or misleading
argument to the jury); People v. Cotton, 662 N.Y.S.2d 135, 136 (App. Div. 2000)
(prosecutor’s summation betrayed his “duty not only to seek convictions but also to see that
justice is done” and his “duty of fair dealing to the accused and candor to the courts”)
(citation omitted) (internal quotation marks omitted); People v. LaSalle, 663 N.Y.S.2d 79, 80
(App. Div. 1997) (prosecutor withheld impeachment evidence that “clearly” should have
been disclosed); People v. Roberts, 611 N.Y.S.2d 214, 215 (App. Div. 1994) (“There is no
doubt that the People violated the principles of Brady.”); People v. Khadaidi, 608 N.Y.S.2d
471, 472–73 (App. Div. 1994) (prosecution withheld interview notes with complainant
containing prior inconsistent statements); People v. Jackson, 603 N.Y.S.2d 558, 559 (App.
Div. 1993) (prosecution withheld several pieces of exculpatory and impeachment evidence
in arson case); People v. Inswood, 580 N.Y.S.2d 39, 40 (App. Div. 1992) (prosecutor failed
to turn over Brady material that revealed existence of potentially exculpatory witnesses).
292. See generally Complaint, Collins v. City of New York, No. 11 Civ. 766 (E.D.N.Y.
filed Feb. 16, 2011); John Eligon, In Suit, Freed Man Accuses Prosecutors of Misconduct,
N.Y. TIMES, Feb. 17, 2011, at A26.
Hynes’s office agreed to federal habeas corpus relief for Collins,293 his
immediate release after fifteen years in prison, and the dismissal of the
indictment without retrial, 294 rather than have Vecchione, the Office’s chief
“anti-corruption” prosecutor, 295 and other prosecutors in the Office, testify
at a habeas hearing ordered by Federal District Judge Dora Irizarry. 296 The
Office admitted that it had failed to disclose a secret recantation by its chief
witness, 297 a recantation that Vecchione, in a previous sworn affidavit, had
categorically denied ever occurred.298 In testimony that the federal court
found “credible,” a second key witness testified that he was a drug addict at
the time he was questioned by Vecchione, and that Vecchione threatened
him with physical harm and secretly incarcerated him for a week without
following required material witness procedures. 299 The court characterized
the prosecution’s failure to disclose this information, along with additional
evidence refuting the testimony of the third and final significant prosecution
trial witness, as “shameful.” 300 Immediately after Judge Irizarry made her
denunciation of Vecchione’s behavior and the conduct of the Office, Hynes
ratified that behavior. He told the news media that he would conduct no
investigation, praised Vecchione as “a very, very principled lawyer,” 301 and
pronounced him “not guilty of any misconduct.” 302 Collins’s lawsuit
contends that Vecchione’s behavior did not simply result from Hynes’s
indifference to coercion of witnesses and Brady violations but that such
misconduct, at least in high-profile cases that the Office was anxious to
win, was the policy of the Office. 303
293. See Sean Gardiner, Attorney Drops Attempt at Retry, WALL ST. J., June 10, 2010, at
A25; Tom Robbins, Presumed Guilty: A Jailhouse Lawyer Says a Top Brooklyn Prosecutor
Rigged His Murder Conviction, VILLAGE VOICE, June 2, 2010, at 8; A. G. Sulzberger,
Murder Conviction Voided over Prosecutors’ Conduct, N.Y. TIMES, May 26, 2010, at A21;
A. G. Sulzberger, Witness Issue Prompts a Hearing on Possible Misconduct by Prosecutors
to Be Postponed, N.Y. TIMES, May 27, 2010, at A27.
294. See A. G. Sulzberger, Facing Misconduct Claims, Brooklyn Prosecutor Agrees to
Free Man Held 15 Years, N.Y. TIMES, June 9, 2010, at A18; see also Mark Fass, Judge
Orders Inmate’s Release, Blasts D.A.’s Lack of Remorse, N.Y. L.J., June 9, 2010, at 1.
295. KINGS COUNTY DISTRICT ATTORNEY’S OFFICE: BUREAUS, UNITS & DIVISIONS,
http://www.brooklynda.org/kcda-bur-units-divisions/kcda-bur-unit-div.htm (last visited Oct.
20, 2011) (listing Michael Vecchione as Chief of the Rackets Division, which “investigate[s]
and prosecute[s] serious and complex crimes in the areas of organized crime, criminal
misconduct by public officials and police officers, gang-related activity, major frauds, arson,
narcotics and tax revenue crimes”).
296. Sulzberger, supra note 294, at A18.
297. Supplemental Affidavit in Opposition [to] Amended Petition for Writ of Habeas
Corpus of Kevin Richardson at ¶ 6, Collins v. Ercole, 08-CV-1359 (E.D.N.Y. filed May 7,
298. Affirmation of Michael F. Vecchione at ¶ 15, People v. Collins, No. 2884-94 (N.Y.
Sup. Ct. Kings Co. dated Nov. 3, 2006) (on file with author).
299. Transcript of Civil Cause for Hearing Before the Honorable Dora L. Irizarry, United
States Dist. Judge at 120, Collins v. Ercole, 08-CV-1359 (E.D.N.Y. dated June 8, 2010) (on
file with author).
300. Id. at 133.
301. Sulzberger, supra note 294, at A18.
302. Sean Gardiner, A Solitary Jailhouse Lawyer Argues His Way Out of Prison, WALL
ST. J., Dec. 24, 2010, at A1.
303. Complaint, supra note 292, at ¶¶ 437–523.
CONCLUSION
Contrary to the Supreme Court’s assumption in Imbler and in subsequent
decisions, experience shows that prosecutors are not disciplined—either
internally by their Offices or externally by court or bar disciplinary
committees—for violating their Brady or other due process obligations
during criminal proceedings. Three major District Attorneys’ Offices in
“progressive” New York City lack any formal disciplinary rules or
procedures, despite being large organizations employing hundreds of
prosecutors and support staff. 304 Their informal “policy” is to confine
consideration of discipline to cases in which courts have found
“intentional” or willful misbehavior, even though courts often do not reach
the issue of willfulness as it may be irrelevant to whether there was a
violation of the defendant’s due process rights requiring reversal of the
conviction. In the relatively few Brady or other cases in which the court
has found willfulness, the District Attorneys avoid discipline by rejecting
the court’s conclusion, or just passively failing to follow up with any
investigation or consideration of discipline.305
In future cases, when analyzing policy considerations relating to
individual and municipal liability by prosecutors or their employers for
violations of the constitutional rights of criminal suspects or defendants, the
Supreme Court should abandon the false assumption that prosecutors,
theoretically subject to professional codes, really are disciplined or have
reason to fear being disciplined by their offices or by outside disciplinary
bodies. Otherwise, the Court will continue to premise significant civil
rights decisions on a fiction that has plagued constitutional jurisprudence
for thirty-five years.
304. See supra notes 149, 151–52, 155, 162–64, 228–231 and accompanying text.
305. See supra notes 123–30, 136, 138–39, 181, 227, 249–53 and accompanying text.

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Case 1:18-cv-05500-NG-ST Document 1 Filed 10/01/18 Page 1 of 28 PageID #: 1

UNITED STATES DISTRICT COURT

Plaintiff RHIAN TAYLOR (“Plaintiff” or “Taylor”), by his attorneys, the LAW

for murder in Queens, New York.

fair trial and due process rights of criminal defendants.

JURISDICTION, VENUE, AND CONDITIONS PRECEDENT

5. This action arises under 42 U.S.C. §§ 1983 and 1988.

6. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343.

7. Venue is proper in this Court pursuant to 28 U.S.C. § 1391.

here in his individual and official capacities.

Attorney (“D.A.”), assistants district attorney (“ADAs”), and detective-investigators (“D.I.s”)

employment and/or under color of law.

ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

still hanging out in the street.

and came to a stop.

and he was found to have no weapon.

24. Plaintiff emerged as a suspect.

Turner and Hilton.

26. Each of them identified Plaintiff as the shooter.

14, 2007, Bey arrested him for the murder.

The Trial Proceedings

30. The prosecutor was Assistant District Attorney Karen Ross.

murder and other serious prosecutions.

credibility of their testimony.

Testimony of Anthony Hilton

34. Hilton was a high school dropout and drug user.

incident, and did not remember whether he smoked that night.

36. He had been convicted, as a youthful offender, for criminal possession of a

criminal possession of stolen property.

as the girl’s “kissing cousin” and continued to flirt with her.

45. He claimed the shooter, like Plaintiff, was wearing glasses.

what had happened.

instead went to the hospital to try to visit Brown.

52. He tried to show Hilton had a motive to falsely accuse Plaintiff.

explanation for the presence of his blood on the vehicle.

at a proceeding to violate his probation on his gun conviction.

not affect his testimony.

his gun possession conviction.

shot himself in the foot with it.

61. However, when cross-examined by Plaintiff’s attorney, Hilton testified he had

been falsely convicted.

62. He denied that he had possessed any gun.

Testimony of Seprel Turner

into a cooperation agreement with the Queens County District Attorney.

sentence of three years of probation.

70. Brown asked if they were “kissing cousins.”

73. Like Hilton, Turner described the shooter as wearing glasses.

the shooter he initially gave to the detective.

the shooting, and he identified him again in the courtroom.

displayed to Turner in a photo array.

as having been present in the area when the shooting occurred.

Summations and Verdict

Office with respect to their pending cases—to falsely accuse Taylor.

identified Plaintiff as the shooter or at the trial.

benefit at all, and had no reason to lie.

pinning this on somebody who didn’t do it.”

charges against him.

89. Plaintiff was sentenced to serve 20 years to life in prison.

90. Plaintiff was sent upstate to serve his sentence.

conviction for violation of his right to a fair trial.